Power to arrest
The arrest of daughter of a retired High Court Judge by the CBI on the basis of a complaint alleging demand of graft has raised an important question about unbridled and un-guided power of an Investigation officer to arrest anyone merely on the basis of allegations in a compliant.
The Expressindia.com has claimed possession of a copy of FIR and has mentioned the contents of the same. The facts mentioned in the news indicate possibility of malicious prosecution by the frustrated complainant.
The case is reportedly pending before the National Commission. The State Commission has already disposed off the same. Where is the question of post decision bribe by a party who has suffered adverse order? Anyone having a little knowledge about the establishment of the National Consumer Forum, members of which are retired Supreme Court judges, and the manner in which it functions, would not believe the allegations in the complaint.
Existence of people indulged in misuse of names of the persons occupying responsible posts, for their own benefit without even knowledge of their activities to such person, whose name is being misused, is not a new thing. Declaring the person whose name is being misused as accused is the most imprudent and unjust action. By this logic, any person occupying higher responsibility post or his near ones can be harassed and arrested by simply naming them in any FIR. With this constant threat, no one will aspire to occupy any constitutional or responsible post.
The arrest appears to be a hasty and irresponsible action. Merely because an investigation agency has power to arrest, it should not be allowed to exercise it without any incriminating evidence. The facts in the news, if correct, the arrest is abuse of authority. It is a matter of personal liberty and it cannot be dealt with so casually. Such hasty arrest needs to be condemned. It is high time to frame and implement guidelines for exercise of authority of an investigation Officer to arrest anyone, unmindful of its consequences. The right to live with dignity is the fundamental right and it cannot be allowed to be violated under the pretext of investigation of allegations in a complaint. We are in 21st Century and the irrational and inhuman laws permitting abuse of authority, which were framed by the British to rule the nation by treating the same as a colony cannot be allowed to continue in the today’s era, which values human rights. Apart from the agony being suffered by the arrested, the faith in the system of administration of justice is at stake.
The said matter also provides necessity of considering bail matters by the judiciary from the angle of abuse of the legal process by a mischievous complainant. It is a general experience that, bail applications are rejected by simply considering the nature of allegations without assessing the credibility of the same.
Even in the case of ‘Note for Vote’ controversy, the persons who arranged sting operations are arrested and are sent behind bars. The beneficiaries of the event continue in Power.
I sincerely feel that, the entire approach towards the investigation aspect and authority of the investigation officer to arrest a person merely on the basis of allegations in a complaint deserves reconsideration.
VAKILSAHEB
15 October 2011
26 July 2011
Lokpal Bill and media interviews by Justice Hegde
Comments by justice Hegde, on his own report and his anticipation about expected response by the Government has strengthened the contention of the Congress party that, an uncontrolled Lokpal is not advisable. People supporting Anna Hazare camp are required to give second thought on the insistence of uncontrolled superpower Lokpal.
Only because the present government has lost its credibility doesn’t necessarily mean that the apprehensions raised by the Government are illogical or unwarranted. For drafting of a proper and effective legislation all the probabilities are required to be considered.
In fact, an occupant of the constitutional post should not have accepted to represent a social group in the drafting committee.
It is always that, we draft legislations by emotions of the moment and not with professional wisdom.
It is to be noted that, all the legislations drafted in British era are still relevant and are best examples of complete legislations. However, the legislations drafted after independence are not that professional and have proved to defeat the purpose of the very legislation.
It is, therefore, necessary to leave the job of drafting the Lokpal legislation to reputed professional Lawyers and Jurists. The draft so prepared can be discussed by the legislatures before enacting the same.
Adamant insistences of politicians and so called social representatives are not a proper way to draft and enact an important legislation.
As an advocate and a responsible citizen of India, I disapprove the interviews by justice Hegde to media about his own report. These iterviews have questioned the credibility of the report.
VAKILSAHEB
Only because the present government has lost its credibility doesn’t necessarily mean that the apprehensions raised by the Government are illogical or unwarranted. For drafting of a proper and effective legislation all the probabilities are required to be considered.
In fact, an occupant of the constitutional post should not have accepted to represent a social group in the drafting committee.
It is always that, we draft legislations by emotions of the moment and not with professional wisdom.
It is to be noted that, all the legislations drafted in British era are still relevant and are best examples of complete legislations. However, the legislations drafted after independence are not that professional and have proved to defeat the purpose of the very legislation.
It is, therefore, necessary to leave the job of drafting the Lokpal legislation to reputed professional Lawyers and Jurists. The draft so prepared can be discussed by the legislatures before enacting the same.
Adamant insistences of politicians and so called social representatives are not a proper way to draft and enact an important legislation.
As an advocate and a responsible citizen of India, I disapprove the interviews by justice Hegde to media about his own report. These iterviews have questioned the credibility of the report.
VAKILSAHEB
21 June 2011
Apology by a contemnor
While deciding CRIMINAL APPEAL NO. 697 of 2006 [Vishram Singh Raghubanshi Versus State of U.P.] the honourable Supreme Court of India has observed that, an apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the “contrition which is the essence of the purging of a contempt”. However, even if the apology is not belated but the court finds it to be without real contrition and remorse, and finds that it was merely tendered as a weapon of defense, the Court may refuse to accept it. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment, it ceases to be an apology and becomes an act of a cringing coward.
The honourable Supreme Court was dealing with a matter of contemptuous behavior by an Advocate with the Judicial Officer, before whom, the Advocate had allegedly presented a wrong person impersonating him as the accused causing surrender. When there was dispute regarding the genuineness of the identity of the surrendering person, the advocate misbehaved and used abusive language.
The learned Presiding Officer made a reference to the honourable High Court as well as Uttar Pradesh Bar Council.
Ironically, the Uttar Pradesh Bar Council, which is supposed to lay high standards of practice, dismissed the compliant.
However, the Honourable High Court convicted the advocate by refusing to accept the apology tendered by the advocate contemnor.
The honourable Supreme Court considered the factual accepts and ruled that, the apology was tendered only to avoid punishment.
VAKILSAHEB
The honourable Supreme Court was dealing with a matter of contemptuous behavior by an Advocate with the Judicial Officer, before whom, the Advocate had allegedly presented a wrong person impersonating him as the accused causing surrender. When there was dispute regarding the genuineness of the identity of the surrendering person, the advocate misbehaved and used abusive language.
The learned Presiding Officer made a reference to the honourable High Court as well as Uttar Pradesh Bar Council.
Ironically, the Uttar Pradesh Bar Council, which is supposed to lay high standards of practice, dismissed the compliant.
However, the Honourable High Court convicted the advocate by refusing to accept the apology tendered by the advocate contemnor.
The honourable Supreme Court considered the factual accepts and ruled that, the apology was tendered only to avoid punishment.
VAKILSAHEB
19 June 2011
Section 313 of Cr.P.C.
Circumstances not put to the accused u/s 313 of Cr.P.C. cannot be used against him.
While deciding CRIMINAL APPEAL NOs. 1693-1694 OF 2005 [State of U.P. Versus Mohd Iqram & Anr.] the honourable Supreme Court of India has underlined mandatory nature of provisions of S.313 of the Criminal Procedure Code, which offers opportunity to the accused to explain incriminating circumstances and evidence against him.
These observations are made while reversing a judgment of acquittal of the accused, acquitted by the First Appellate Court by setting aside initial order of conviction. The initial conviction was set aside by the First Appellate Court by observing that, in the opinion of the First Appellate Court, the murder, subject matter of the prosecution was committed by the husband of the deceased after committing rape on her. The learned trial Court had acquitted the husband and convicted other accused, who were caught in suspicious circumstances.
While reassessing the evidence, the honourable Supreme Court, has found that, the observations of the learned First appellate court against the acquitted husband of the deceased were not only unwarranted but not permissible in absence of any opportunity to him to explain the suggestions reflected from the opinion of the learned First appellate court.
The honourable Apex Court has also found that, the accused, who were convicted by the learned trial court, though were offered opportunity to explain incriminating circumstances against them, had failed to explain the same and were rightly convicted by the learned trial court and were wrongly acquitted by the learned first appellate court.
Para 13 of the judgment, which underlines the importance of provisions of section 313 of the Cr.P.C. reads as under,
13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: 13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)
While deciding CRIMINAL APPEAL NOs. 1693-1694 OF 2005 [State of U.P. Versus Mohd Iqram & Anr.] the honourable Supreme Court of India has underlined mandatory nature of provisions of S.313 of the Criminal Procedure Code, which offers opportunity to the accused to explain incriminating circumstances and evidence against him.
These observations are made while reversing a judgment of acquittal of the accused, acquitted by the First Appellate Court by setting aside initial order of conviction. The initial conviction was set aside by the First Appellate Court by observing that, in the opinion of the First Appellate Court, the murder, subject matter of the prosecution was committed by the husband of the deceased after committing rape on her. The learned trial Court had acquitted the husband and convicted other accused, who were caught in suspicious circumstances.
While reassessing the evidence, the honourable Supreme Court, has found that, the observations of the learned First appellate court against the acquitted husband of the deceased were not only unwarranted but not permissible in absence of any opportunity to him to explain the suggestions reflected from the opinion of the learned First appellate court.
The honourable Apex Court has also found that, the accused, who were convicted by the learned trial court, though were offered opportunity to explain incriminating circumstances against them, had failed to explain the same and were rightly convicted by the learned trial court and were wrongly acquitted by the learned first appellate court.
Para 13 of the judgment, which underlines the importance of provisions of section 313 of the Cr.P.C. reads as under,
13. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation on incriminating material that has surfaced against him. Section 313 Cr.P.C. is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so.
Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 Cr.P.C. cannot be used against him and have to be excluded from consideration. (Vide: 13 Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; State of Maharashtra v. Sukhdeo Singh & Anr., AIR 1992 SC 2100; and Paramjeet Singh @ Pamma v. State of Uttarakhand, AIR 2011 SC 200)
04 June 2011
Death sentence for fake encounters
While deciding CRIMINAL APPEAL NOS.1174-1178_OF 2011 [Prakash Kadam & etc. versus Ramprasad Vishwanath Gupta & Anr], the honourable Supreme Court of India while expressing it’s anguish on fake encounters, has opined that, in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murders by persons who are supposed to uphold the law. The honourable Court further observed that, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
The judgment has it’s own literate value. Part of the judgment is reproduced here.
The judgment starts by remembering a poem by Shakespeare
A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter’d with the hands of war;
All pity choked with custom of fell deeds:
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)
18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
23. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).
25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.
28. Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word ‘Matsya’ means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide ‘History of Dharmashastra’ by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony’s speech in Shakespeare’s ‘Julius Caesar’ quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said “whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law,” which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.
30. Kautilya says, ‘if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak’. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chenna bhavellokey prithivyaam dandadharakah Shuley atsyanivapakshyan durbalaan balvattaraah”
32. This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker nes, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.
33. We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of Matsyanyaya.
The judgment has it’s own literate value. Part of the judgment is reproduced here.
The judgment starts by remembering a poem by Shakespeare
A curse shall light upon the limbs of men;
Domestic fury and fierce civil strife
Shall cumber all the parts of Italy;
Blood and destruction shall be so in use
And dreadful objects so familiar
That mothers shall but smile when they behold
Their infants quarter’d with the hands of war;
All pity choked with custom of fell deeds:
And Caesar’s spirit, ranging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war;
That this foul deed shall smell above the earth
With carrion mean, groaning for burial.
-- (Shakespeare: Julius Caesar Act 3 Scene 1)
18. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail.
23. In our opinion this is a very serious case wherein prima facie some police officers and staff were engaged by some private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as contract killers for them. If such police officers and staff can be engaged as contract killers to finish some person, there may be very strong apprehension in the mind of the witnesses about their own safety. If the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that they may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while granting bail to the accused persons.
24. In our opinion, the High Court was perfectly justified in canceling the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say,”Who will guard the Praetorian guards?” (see in this connection the judgment of this Court in CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on 25.10.2010).
25. We are of the view that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. Fake ‘encounters’ are nothing but cold blooded, brutal murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
26. We warn policemen that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.
28. Before parting with this case, it is imperative in our opinion to mention that our ancient thinkers were of the view that the worst state of affairs possible in society is a state of lawlessness. When the rule of law collapses it is replaced by Matsyanyaya, which means the law of the jungle. In Sanskrit the word ‘Matsya’ means fish, and Matsyanyaya means a state of affairs where the big fish devours the smaller one. All our ancient thinkers have condemned Matsyanyaya vide ‘History of Dharmashastra’ by P.V. Kane Vol. III p. 21. A glimpse of the situation which will prevail if matsyanyaya comes into existence is provided by Mark Antony’s speech in Shakespeare’s ‘Julius Caesar’ quoted at the beginning of this judgment.
29. This idea of matsyanyaya (the maxim of the larger fish devouring the smaller ones or the strong despoiling the weak) is frequently dwelt upon by Kautilya, the Mahabharata and other works. It can be traced back to the Shatapatha Brahmana XI 1.6.24 where it is said “whenever there is drought, then the stronger seizes upon the weaker, for the waters are the law,” which means that when there is no rain the reign of law comes to an end and matsyanyaya beings to operate.
30. Kautilya says, ‘if danda be not employed, it gives rise to the condition of matsyanyaya, since in the absence of a chastiser the strong devour the weak’. That in the absence of a king (arajaka) or when there is no fear of punishment, the condition of matsyanyaya follows is declared by several works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30 and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II. 20.1295 etc.
31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:- “Raja chenna bhavellokey prithivyaam dandadharakah Shuley atsyanivapakshyan durbalaan balvattaraah”
32. This shloka means that when the King carrying the rod of punishment does not protect the earth then the strong persons destroy the weaker nes, just like in water the big fish eat the small fish. In the Shantiparva of Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse in the world than lawlessness, for in a state of Matsyayaya, nobody, not even the evil doers are safe, because even the evil doers will sooner or later be swallowed up by other evil doers.
33. We have referred to this because behind the growing lawlessness in the country this Court can see the looming danger of Matsyanyaya.
01 June 2011
Judicial legislation on Rent Acts.
While deciding CIVIL APPEAL NO. 4422 OF 2011 [Mohammad Ahmad & Anr Versus Atma Ram Chauhan & Ors.] the honourable Supreme Court of India has fixed some guidelines, some of which run directly in conflict with the provisions of Rent legislations in force in the country.
As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.
These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.
Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?
The guidelines fixed by the honourable Supreme Court are,
21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.
These are as follows:-
(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.
VAKILSAHEB OPINES
The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.
VAKILSAHEB
As per the guidelines fixed by the honourable Apex Court, henceforth, payment of tax would be the liability of the tenant. Most of the rent legislations provide that, the said liability is of the landlords. The honourable Supreme Court has also issued guidelines for fixation of standard rents.
These guidelines, if considered against the statutory provisions, process of adjudication as to whether a tenant is a defaulter or not has become more complicated as the deductions made by the tenants towards payment of taxes would be treated as arrears of rent, contrary to the provisions of respective statutes. Whether a decree of eviction can be passed by assessing the rent payable contrary to the statutory provisions would be a debatable issue. Five years absolute immunity granted to a tenant paying rent at market rate would render all other grounds of eviction like bonafide requirement, nuisance, etc. as redundant.
Vote bank oriented approach of the legislators has lead to continuation of illogical and unjust protections to some classes. However, question remains, whether that can be a reason to allow the judiciary to legislate?
The guidelines fixed by the honourable Supreme Court are,
21. According to our considered view majority of these cases are filed because landlords do not get reasonable rent akin to market rent, then on one ground or the other litigation is initiated. So before saying omega, we deem it our duty and obligation to fix some guidelines and norms for such type of litigation, so as to minimise landlord-tenant litigation at all levels.
These are as follows:-
(i) The tenant must enhance the rent according to the terms of the agreement or at least by ten percent, after every three years and enhanced rent should then be made payable to the landlord. If the rent is too low (in comparison to market rent), having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
(ii) Apart from the rental, property tax, water tax, maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common area shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
(iii) The usual maintenance of the premises, except major repairs would be carried out by the tenant only and the same would not be reimbursable by the landlord.
(iv) But if any major repairs are required to be carried out then in that case only after obtaining permission from the landlord in writing, the same shall be carried out and modalities with regard
to adjustment of the amount spent thereon, would have to be worked out between the parties.
(v) If present and prevalent market rent assessed and fixed between the parties is paid by the tenant then landlord shall not be entitled to bring any action for his eviction against such a tenant at least for a period of 5 years. Thus for a period of 5 years the tenant shall enjoy immunity from being evicted from the premises.
(vi) The parties shall be at liberty to get the rental fixed by the official valuer or by any other agency, having expertise in the matter.
(vii) The rent so fixed should be just, proper and adequate, keeping in mind, location, type of construction, accessibility with the main road, parking space facilities available therein etc. Care ought to be taken that it does not end up being a bonanza for the landlord.
22. These are some of the illustrative guidelines and norms but not exhaustive, which can be worked out between landlord and tenant so as to avoid unnecessary litigation in Court.
VAKILSAHEB OPINES
The judiciary has authority to examine constitutional validity of legislation. Please declare the illogical, irrational and un-prudent legislations as unconstitutional by applying the test of existence of rational nexus with the object to be achieved.
VAKILSAHEB
Sanction for prosecution
The honourable Supreme Court of India, while deciding CRIMINAL APPEAL NO. 992 OF 2007 [M.P. STATE VERSUS PRADEEP KUMAR GUPTA] has held that, for an employee appointed by the State Government and deputed to a Local Authority, the State Government being the appointing authority is competent to grant sanction for his prosecution.
VAKILSAHEB
VAKILSAHEB
29 May 2011
Scope of hearing in appeal admitted on limited ground.
The honourable Supreme Court, while hearing an appeal. i.e. CRIMINAL APPEAL NO. 2109 OF 2009 (YOMESHBHAI PRANSHANKAR BHATT VERSUS STATE OF GUJARAT) has declared that, Admission of an appeal on a limited ground cannot restrict the scope of final hearing to the said ground. The honourable Supreme Court has considered the scheme of Supreme Court Rules, 1966 as well as the provisions of article 145 of the Constitution of India. The honourable Supreme Court has also considered the scheme of section 100 of the Civil Procedure Code, governing the scope of hearing in second appeals admitted on particular substantial questions of Law, framed at the admission stage.
VAKILSAHEB
28 May 2011
Conversion of acquittal order in conviction - Principles
Conversion of acquittal order in conviction - Principles
While deciding an appeal against the order of acquittal of an accused prosecuted for offence of murder, filed by the STATE OF RAJASTHAN, the honourable Supreme Court of India has stated the principles for conversion of order of acquittal in conviction.
While deciding CRIMINAL APPEAL NO. 1318 OF 2005 filed by the State of Rajasthan against ISLAM and others, the honourable Supreme Court has noted the settled judicial principle that, when the Supreme Court exercises jurisdiction under Article 136, it definitely exercises a discretionary jurisdiction but such discretionary jurisdiction has to be exercised in order to ensure that there is no miscarriage of justice. If the consideration by the High Court is misconceived and perverse there is nothing in law which prevents the Supreme Court from exercising its jurisdiction under Article 136 against an order of acquittal when such acquittal cannot be sustained at all, in view of the evidence on record.
The honourable Supreme Court has further observed that, the golden thread which runs through the administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from a conviction of an innocent.
The Honourable Supreme Court has further observed, the principle to be followed by appellate court considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons to do so.
The Honourable Supreme Court proceeded to state the grounds when an order of acquittal can be interfered to convict the accused.
a. The finding is vitiated by some glaring infirmity in the
appraisal of evidence. (State of U.P. Vs. Sahai, AIR 1981
SC 1442 at paras 19-21)
b. The finding is perverse. (State of MP Vs. Bachhudas,
(2007) 9 SCC 135 at para 10 and State of Punjab Vs. Parveen
Kumar (2005) 9 SCC 769 at para 9)
c. The order suffers from substantial errors of law and
fact (Rajesh Kumar Vs. Dharamvir 1997(4) SCC 496 at para 5)
d. The order is based on misconception of law or erroneous
appreciation of evidence (State of UP Vs. Abdul 1997(10)
SCC 135; State of UP Vs. Premi 2003(9) SCC 12 at para 15)
e. High Court has adopted an erroneous approach resulting
in miscarriage of justice (State of TN Vs. Suresh 1998(2)
SCC 372 at paras 31 and 32; State of MP Vs. Paltan Mallah
2005(3) SCC 169 at para 8)
f. Acquittal is based on irrelevant grounds (Arunachalam
Vs. Sadhanatham 1979(2) SCC 297 at para 4
g. High Court has completely misdirected itself in
reversing the order of conviction by the Trial Court
(Gaurishanker Sharma Vs. State of UP, AIR 1990 SC 709)
h. The judgment is tainted with serious legal infirmities
(State of Maharashtra Vs. Pimple, AIR 1984 SC 63 at para
75)
The honourable Supreme Court has noted that, while reversing an acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of acquittal and if the view of the High Court is reasonable and founded on materials on record, the Supreme Court should not interfere. However, if the Supreme Court, on reassessment of evidence, reaches to an opinion that, the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on it’s jurisdiction under Article 136 to come to a just decision quashing the acquittal. The honourable Supreme Court, deciding the appeal has noted the precedents reported in 1985(4) SCC 476 at para 45; 1996(7) SCC 471 at para 4).
VAKILSAHEB
While deciding an appeal against the order of acquittal of an accused prosecuted for offence of murder, filed by the STATE OF RAJASTHAN, the honourable Supreme Court of India has stated the principles for conversion of order of acquittal in conviction.
While deciding CRIMINAL APPEAL NO. 1318 OF 2005 filed by the State of Rajasthan against ISLAM and others, the honourable Supreme Court has noted the settled judicial principle that, when the Supreme Court exercises jurisdiction under Article 136, it definitely exercises a discretionary jurisdiction but such discretionary jurisdiction has to be exercised in order to ensure that there is no miscarriage of justice. If the consideration by the High Court is misconceived and perverse there is nothing in law which prevents the Supreme Court from exercising its jurisdiction under Article 136 against an order of acquittal when such acquittal cannot be sustained at all, in view of the evidence on record.
The honourable Supreme Court has further observed that, the golden thread which runs through the administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and the other to the innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from a conviction of an innocent.
The Honourable Supreme Court has further observed, the principle to be followed by appellate court considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons to do so.
The Honourable Supreme Court proceeded to state the grounds when an order of acquittal can be interfered to convict the accused.
a. The finding is vitiated by some glaring infirmity in the
appraisal of evidence. (State of U.P. Vs. Sahai, AIR 1981
SC 1442 at paras 19-21)
b. The finding is perverse. (State of MP Vs. Bachhudas,
(2007) 9 SCC 135 at para 10 and State of Punjab Vs. Parveen
Kumar (2005) 9 SCC 769 at para 9)
c. The order suffers from substantial errors of law and
fact (Rajesh Kumar Vs. Dharamvir 1997(4) SCC 496 at para 5)
d. The order is based on misconception of law or erroneous
appreciation of evidence (State of UP Vs. Abdul 1997(10)
SCC 135; State of UP Vs. Premi 2003(9) SCC 12 at para 15)
e. High Court has adopted an erroneous approach resulting
in miscarriage of justice (State of TN Vs. Suresh 1998(2)
SCC 372 at paras 31 and 32; State of MP Vs. Paltan Mallah
2005(3) SCC 169 at para 8)
f. Acquittal is based on irrelevant grounds (Arunachalam
Vs. Sadhanatham 1979(2) SCC 297 at para 4
g. High Court has completely misdirected itself in
reversing the order of conviction by the Trial Court
(Gaurishanker Sharma Vs. State of UP, AIR 1990 SC 709)
h. The judgment is tainted with serious legal infirmities
(State of Maharashtra Vs. Pimple, AIR 1984 SC 63 at para
75)
The honourable Supreme Court has noted that, while reversing an acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of acquittal and if the view of the High Court is reasonable and founded on materials on record, the Supreme Court should not interfere. However, if the Supreme Court, on reassessment of evidence, reaches to an opinion that, the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on it’s jurisdiction under Article 136 to come to a just decision quashing the acquittal. The honourable Supreme Court, deciding the appeal has noted the precedents reported in 1985(4) SCC 476 at para 45; 1996(7) SCC 471 at para 4).
VAKILSAHEB
26 May 2011
Honourable Supremem Court cancelled allotment of land to Sourabh Ganguli.
Honourable Supremem Court has cancelled allotment of land to Sourabh Ganguli.
The honourable Supreme Court has observed as under,
53. In the instant case, the impugned allotment of a different and bigger plot by the government in
favour of the allottee without any advertisement, when initially advertisement was resorted to, and then it was given up and everything was rushed through in hot haste, is unreasonable and arbitrary, and the High Court was wrong in upholding the same.
54. Before I conclude, I make it clear that I am aware that the allottee is a cricketer of great
repute and has led this country to victory in many tournaments, both in India and abroad. I have
watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court.
55. For the reasons aforesaid,the order of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment.
VAKILSAHEB
The honourable Supreme Court has observed as under,
53. In the instant case, the impugned allotment of a different and bigger plot by the government in
favour of the allottee without any advertisement, when initially advertisement was resorted to, and then it was given up and everything was rushed through in hot haste, is unreasonable and arbitrary, and the High Court was wrong in upholding the same.
54. Before I conclude, I make it clear that I am aware that the allottee is a cricketer of great
repute and has led this country to victory in many tournaments, both in India and abroad. I have
watched him on the television on many occasions and was delighted to see his glorious cover drives and effortlessly lofted shots over the fence. But as a Judge, I have different duties to discharge. Here I must be objective and eschew my likes and dislikes and render justice to a cause which has come before the Court.
55. For the reasons aforesaid,the order of allotment of plot no. CA-222, Sector-V, Salt Lake (Bidhannagar),Kolkata made in favour of Mr.Sourav Ganguly,the allottee,is quashed. In consequence thereof, the lease deed dated 1.4.09, pursuant to such allotment stands quashed. The allottee must, within two weeks from date, handover the peaceful and vacant possession of plot No. CA-222 measuring 63.04 Kathas in Sector-V, Salt Lake City (Bidhannagar), Kolkata to the concerned department of the State Government. Within two weeks thereafter the State Government must refund to the allottee, by a Cheque, the entire money paid by him for such allotment.
VAKILSAHEB
19 April 2011
08 April 2011
12 February 2011
No person living in India is safe
No person living in India is safe
The Webpage Express buzz has reported that, the honourable Supreme Court of India has expressed serious fears with regard to privacy and freedom in the country for its citizens.
The report further says, a Bench comprising Justice G S Singhvi and Justice Asok Kumar Ganguly said, “No person living in India is safe. Will this nation be the target over the years? There are master forgers. Experts in fabrication of records.”
It is reported that, the Bench was hearing the case of Amar Singh, former leader of Samajwadi Party of Uttar Pradesh. As Amar Singh had alleged that his telephones were tapped, the Bench felt that it might happen to anybody tomorrow.
VAKILSAHEB
The Webpage Express buzz has reported that, the honourable Supreme Court of India has expressed serious fears with regard to privacy and freedom in the country for its citizens.
The report further says, a Bench comprising Justice G S Singhvi and Justice Asok Kumar Ganguly said, “No person living in India is safe. Will this nation be the target over the years? There are master forgers. Experts in fabrication of records.”
It is reported that, the Bench was hearing the case of Amar Singh, former leader of Samajwadi Party of Uttar Pradesh. As Amar Singh had alleged that his telephones were tapped, the Bench felt that it might happen to anybody tomorrow.
VAKILSAHEB
Height of adamancy
In spite of various judicial orders thereby directing prevention of nuisance caused by loud sound instruments, the hotel administration of hotel Rama international at Aurangabad is indulged in utter violation of the judicial directions.
It is pertinent to note that, the hotel is located just opposite of the Aurangabad Bench of the Mumbai High Court, and quarters of honourable High Court judges are also located adjoining the premises of the High Court.
Question remains, why the honourable High Court is not initiating any action by taking judicial cognisance of the violation of sound pollution norms as well as its own orders to that effect?
Why the Government authorities including the Police authorities are ignoring these adamant violations? Is this hotel, above the Law?
VAKILSAHEB
In spite of various judicial orders thereby directing prevention of nuisance caused by loud sound instruments, the hotel administration of hotel Rama international at Aurangabad is indulged in utter violation of the judicial directions.
It is pertinent to note that, the hotel is located just opposite of the Aurangabad Bench of the Mumbai High Court, and quarters of honourable High Court judges are also located adjoining the premises of the High Court.
Question remains, why the honourable High Court is not initiating any action by taking judicial cognisance of the violation of sound pollution norms as well as its own orders to that effect?
Why the Government authorities including the Police authorities are ignoring these adamant violations? Is this hotel, above the Law?
VAKILSAHEB
08 February 2011
Listing of matters before the honurable High Court
The Times of India from Mumbai has reported that, the Bombay high court on Monday has directed the learned Registrar to initiate action against two clerks for allegedly tampering with the list of cases in order to favour certain petitioners.
The report further states that, the honourable division bench of justices A M Khanwilkar and A R Joshi has found that, two of the clerks in the office of the High Court might have tampered with the daily board of the court to enable listing of two matters under the caption of "fresh matters" instead of "after notice" to give the cases priority.
The report further states that, one of the petitions listed out of turn was filed by relatives of two labourers who were killed after they fell into a ditch dug by the Public Works Department in Pune. The second was filed by a woman seeking action against Mahim police officers for physically assaulting her husband, arrested in a forgery case.
The report further states that, when the matter came up for hearing, the honourable high court realized that it had already issued notices to the state government in both the petitions and should have been listed under the `after notice' category'.
The honourable high court has directed the registrar to file an action taken report by March 14.
If the natures of the petitions are considered, even assuming that, the two clerks have wrongly interfered in the list, it appears to be a matter of sympathetic approach, though not justifiable and amounts to undisciplined behaviors. The incident points out the seriousness of the problem of huge pendancy of matters and the system of administration of justice.
The urgency for appointing sufficient numbers of judges and proportionate staff to manage the huge pendancy is highlighted by the incident.
VAKILSAHEB
The report further states that, the honourable division bench of justices A M Khanwilkar and A R Joshi has found that, two of the clerks in the office of the High Court might have tampered with the daily board of the court to enable listing of two matters under the caption of "fresh matters" instead of "after notice" to give the cases priority.
The report further states that, one of the petitions listed out of turn was filed by relatives of two labourers who were killed after they fell into a ditch dug by the Public Works Department in Pune. The second was filed by a woman seeking action against Mahim police officers for physically assaulting her husband, arrested in a forgery case.
The report further states that, when the matter came up for hearing, the honourable high court realized that it had already issued notices to the state government in both the petitions and should have been listed under the `after notice' category'.
The honourable high court has directed the registrar to file an action taken report by March 14.
If the natures of the petitions are considered, even assuming that, the two clerks have wrongly interfered in the list, it appears to be a matter of sympathetic approach, though not justifiable and amounts to undisciplined behaviors. The incident points out the seriousness of the problem of huge pendancy of matters and the system of administration of justice.
The urgency for appointing sufficient numbers of judges and proportionate staff to manage the huge pendancy is highlighted by the incident.
VAKILSAHEB
Subscribe to:
Posts (Atom)