The Supreme Court in its latest decision, in the case of Vinod Seth v. Devinder Bajaj (AIR 2010 SC 4902) has laid down the principle that issuing directions to a plaintiff to file an undertaking to pay damages to the defendant in the event of being unsuccessful in the suit is not allowable. The court held that the CPC nowhere authorizes or empowers the court to issue a direction in this nature, even by virtue of the inherent powers of the High Court.
This decision is laudable since since it maintains the unfettered right of the citizens to approach the court with their claims. The courts may, to deter vexatious or frivolous litigation devise any other means or create jurisdictional bars, which would also in-turn regulate the litigants. Monetary considerations, however, cannot stand as 'check-posts' to determine whether a suit or proceeding which is initiated in accordance with law, is an abuse of the process of the court.
This principle will apply even to those actions which are likely to cause hardship to the defendant or is likely to be rejected ultimately. If a contrary approach is allowed to remain, it would terrorize the litigants to approach the court even with their bonafide claims.
Monday, October 4, 2010
Saturday, April 10, 2010
Lalu-Rabri freed of corruption charges: Centre won’t appeal & State can’t
The Supreme Court on 01.04.2010 in the matter of Lalu Prasad Yadav v. State of Bihar [JT 2010 (3) SC 433)] held that the State Govt. of Bihar is not competent to file an appeal under S. 378 of Cr. P.C. against the order acquittal passed by the CBI court.
Charges were framed against the two under the Prevention of Corruption Act, of which they were acquitted by the CBI Court, Patna. The Centre decided not to appeal, however, the State went ahead with filing an appeal before the High Court.
The High Court found the appeal maintainable against which the duo sought the well-found support of the Supreme Court.
The highlights in this story have been successfully stolen by the Centre’s willful indifference towards the matter.
Charges were framed against the two under the Prevention of Corruption Act, of which they were acquitted by the CBI Court, Patna. The Centre decided not to appeal, however, the State went ahead with filing an appeal before the High Court.
The High Court found the appeal maintainable against which the duo sought the well-found support of the Supreme Court.
The highlights in this story have been successfully stolen by the Centre’s willful indifference towards the matter.
Saturday, March 27, 2010
Domestic Violence Act~~~~The river now takes the reverse course
In 2005-06 when the ‘Indian’ Domestic Violence Act came (notified on 17.10.2006), it created a very expected household furore. It was like a Diwali gift for the ones ‘actually’ oppressed, while even more of a bonanza for the ones who have always been successful in making the law work their way.
Some people accused the legislation for being gender biased, but what be expected out of it when it is called as ‘The Protection of Women from Domestic Violence Act, 2005’ (hereinafter referred to as ‘the Act’). The real difficulty however, was that neither there was nor is there any similar enactment for the (He) men of our society. May be they know how to protect themselves well!!
The Act introduced a radical stream of rights, especially by giving a statutory recognition to rights of female live-in partners. They, like other women, have rights such as getting monetary reliefs/ compensation and the minimum right of ‘residing’ (not ownership) in the shared household of their male partner/ husband, etc.
The enactment suffers severely from mal-drafting and the least care taken in proof reading. While the ‘Statement of Objects and Reasons’ shouts about the intention of the legislature, the drafted sections are completely vague, with wide and confusing definitions, each linked to one another in a vicious circle.
As a result, there are stories, incidents about misuse of this statute, just as there are and were about Section 498A of the IPC. Those can be dealt at the stages of evidence and careful scrutiny at the time of judgment making.
However, what is disheartening is that even the most basic definitions of “aggrieved person” and “respondent” are left vague and at the mercy of different rules of interpretation.
Recently there have been controversies about who can be a ‘respondent’, more specifically, as to whether a ‘female’ can be made a ‘respondent’ in any proceeding under the Act. Then followed judgments, one after the other, from various High Courts, showing little hints of any comity between them.
Two judgments, one each from M.P. and Madras High Court [2008 (2) Crimes 235 (M.P.) and (2008) 3 MLJ 756 (Mad) respectively] share the view that a female cannot be a ‘respondent’ under the Act even if she happens to be an oppressor and is the male partner’s mother, sister or other female relative!!
Judgments from Rajasthan High Court [2008 (1) WLN 359 and RLW 2008 (4) Raj 3432] showed some mercy by reading the Act and definition of ‘respondent’ fully (by also reading the proviso which was always there) and held that the term ‘relative of the husband or the male partner’ CANNOT not include the female relatives since they have not been excluded. Ironically, in yet another upsetting judgment of the same High Court [2009 (2) WLN 160], a contrary view has come giving a blanket protection to even oppressor females under the Act. Meaning thereby that a female cannot be protected in a household from the atrocities of the relative of her male partner/ husband only because the oppressor is a female relative!
Relief again was given by the judgment from the A.P. High Court Division Bench (decided on 02.06.2009) opines that any relative of male partner/ husband (including a female) can be ‘respondent’, which gains support from clause 4(i) of the Objects and Reasons.
This pseudo law making and breaking may continue till a ‘final’ word comes from the Hon’ble Supreme Court on the subject.
The story however, takes an interesting U-turn since coming in of recent reports, news and cases filed by female relatives (e.g. mother-in-law) of the male partner/ husband against his female partner/ wife under her very own ‘Domestic Violence Act’ alleging acts of violence/ cruelty. Howsoever true the story may be, it CANNOT be allowed under the said Act. Such cases are a result of the very weakly drafted definitions of ‘aggrieved person’ and ‘respondent’ under the Act. If definitions are read carefully, such cases may actually be seem to be covered, however, if the true intent of the legislature is seen as spelt out in the Objects and Reasons, it will look like the river is actually taking a reverse course. Not only are such cases/ complaints/ applications being filed under the Act, but some Magistrates have also passed orders against the female partners.
Appeals and revisions will follow and few injustices done may be reversed but what is truly called for is a corrective/ explanation in the body of the Act itself.
We can only write for a cause, is someone listening???
Some people accused the legislation for being gender biased, but what be expected out of it when it is called as ‘The Protection of Women from Domestic Violence Act, 2005’ (hereinafter referred to as ‘the Act’). The real difficulty however, was that neither there was nor is there any similar enactment for the (He) men of our society. May be they know how to protect themselves well!!
The Act introduced a radical stream of rights, especially by giving a statutory recognition to rights of female live-in partners. They, like other women, have rights such as getting monetary reliefs/ compensation and the minimum right of ‘residing’ (not ownership) in the shared household of their male partner/ husband, etc.
The enactment suffers severely from mal-drafting and the least care taken in proof reading. While the ‘Statement of Objects and Reasons’ shouts about the intention of the legislature, the drafted sections are completely vague, with wide and confusing definitions, each linked to one another in a vicious circle.
As a result, there are stories, incidents about misuse of this statute, just as there are and were about Section 498A of the IPC. Those can be dealt at the stages of evidence and careful scrutiny at the time of judgment making.
However, what is disheartening is that even the most basic definitions of “aggrieved person” and “respondent” are left vague and at the mercy of different rules of interpretation.
Recently there have been controversies about who can be a ‘respondent’, more specifically, as to whether a ‘female’ can be made a ‘respondent’ in any proceeding under the Act. Then followed judgments, one after the other, from various High Courts, showing little hints of any comity between them.
Two judgments, one each from M.P. and Madras High Court [2008 (2) Crimes 235 (M.P.) and (2008) 3 MLJ 756 (Mad) respectively] share the view that a female cannot be a ‘respondent’ under the Act even if she happens to be an oppressor and is the male partner’s mother, sister or other female relative!!
Judgments from Rajasthan High Court [2008 (1) WLN 359 and RLW 2008 (4) Raj 3432] showed some mercy by reading the Act and definition of ‘respondent’ fully (by also reading the proviso which was always there) and held that the term ‘relative of the husband or the male partner’ CANNOT not include the female relatives since they have not been excluded. Ironically, in yet another upsetting judgment of the same High Court [2009 (2) WLN 160], a contrary view has come giving a blanket protection to even oppressor females under the Act. Meaning thereby that a female cannot be protected in a household from the atrocities of the relative of her male partner/ husband only because the oppressor is a female relative!
Relief again was given by the judgment from the A.P. High Court Division Bench (decided on 02.06.2009) opines that any relative of male partner/ husband (including a female) can be ‘respondent’, which gains support from clause 4(i) of the Objects and Reasons.
This pseudo law making and breaking may continue till a ‘final’ word comes from the Hon’ble Supreme Court on the subject.
The story however, takes an interesting U-turn since coming in of recent reports, news and cases filed by female relatives (e.g. mother-in-law) of the male partner/ husband against his female partner/ wife under her very own ‘Domestic Violence Act’ alleging acts of violence/ cruelty. Howsoever true the story may be, it CANNOT be allowed under the said Act. Such cases are a result of the very weakly drafted definitions of ‘aggrieved person’ and ‘respondent’ under the Act. If definitions are read carefully, such cases may actually be seem to be covered, however, if the true intent of the legislature is seen as spelt out in the Objects and Reasons, it will look like the river is actually taking a reverse course. Not only are such cases/ complaints/ applications being filed under the Act, but some Magistrates have also passed orders against the female partners.
Appeals and revisions will follow and few injustices done may be reversed but what is truly called for is a corrective/ explanation in the body of the Act itself.
We can only write for a cause, is someone listening???
Saturday, March 20, 2010
'Jodhpur Temple Tragedy Inquiry Commission' holds: Right to drop witness is Commision's prerogative
An order passed by Former Justice J.R. Chopra (Chairman of the Commission) in the 'Jodhpur Temple Tragedy Inquiry Commission' is the first order which decides the following issue in an inquiry commission:
Whether in an inquiry commission set up by the State Govt., persons who have volunteered to depose as witnesses and have also submitted their affidavits in pursuance of the same from any one of the sides, can later on retract to do so OR whether it is the domain of the Commission solely to decide whether or not the witness is to be examined and the information provided by him in his/ her affidavit will be considered in the inquiry process?
It may be noted that the said commission has been set up to enquire into the reasons and causes for the stampede which took lives of several hundred people at the Mehrangarh Fort in Jodhpur in 2008 and also as to who was responsible for the failed administration at the place of incident. Counsels have been appointed from the side of the victims, the police administration, the Mehrangarh Museum Trust, H.H. Maharaja Umaid Singh Religious Trust and the Commission.
This issue came up when certain key witness were trying to evade deposing before the Commission, which could have prevented important evidence not being analyzed through the Commission.
In a detailed order, Justice Chopra decided the said issue while relying on the provisions of the Commission of Inquiry Act of 1952, Commission of Inquiry (Central) Rules of 1972 and Rajasthan State Commissions of Inquiry (Procedure) Rules of 1969. It was decided that no party can be allowed to drop a witness, once it has agreed to depose as a witness and such discretion is only vested in the Commission.
It is a principle of the law of evidence that the party who calls a particular witness has a right to conduct his/ her examination-in-chief and the opposite party(s) have the right to cross-examine the said witness. In case the party calling the witness wishes to drop a witness & it is allowed by the Commission against the wish of the opposite party, in this situation, the opposite party will have to call the witness as their witness, which will change the nature of the said witness, i.e. he/she will become the opposite party's witness and the said side will lose the right to cross examine him/her. This substantially prejudices the right the opposite side.
The Commission held that such a situation cannot be allowed and none of the parties or their counsels can be allowed to mould the procedure of the Commission.
Whether in an inquiry commission set up by the State Govt., persons who have volunteered to depose as witnesses and have also submitted their affidavits in pursuance of the same from any one of the sides, can later on retract to do so OR whether it is the domain of the Commission solely to decide whether or not the witness is to be examined and the information provided by him in his/ her affidavit will be considered in the inquiry process?
It may be noted that the said commission has been set up to enquire into the reasons and causes for the stampede which took lives of several hundred people at the Mehrangarh Fort in Jodhpur in 2008 and also as to who was responsible for the failed administration at the place of incident. Counsels have been appointed from the side of the victims, the police administration, the Mehrangarh Museum Trust, H.H. Maharaja Umaid Singh Religious Trust and the Commission.
This issue came up when certain key witness were trying to evade deposing before the Commission, which could have prevented important evidence not being analyzed through the Commission.
In a detailed order, Justice Chopra decided the said issue while relying on the provisions of the Commission of Inquiry Act of 1952, Commission of Inquiry (Central) Rules of 1972 and Rajasthan State Commissions of Inquiry (Procedure) Rules of 1969. It was decided that no party can be allowed to drop a witness, once it has agreed to depose as a witness and such discretion is only vested in the Commission.
It is a principle of the law of evidence that the party who calls a particular witness has a right to conduct his/ her examination-in-chief and the opposite party(s) have the right to cross-examine the said witness. In case the party calling the witness wishes to drop a witness & it is allowed by the Commission against the wish of the opposite party, in this situation, the opposite party will have to call the witness as their witness, which will change the nature of the said witness, i.e. he/she will become the opposite party's witness and the said side will lose the right to cross examine him/her. This substantially prejudices the right the opposite side.
The Commission held that such a situation cannot be allowed and none of the parties or their counsels can be allowed to mould the procedure of the Commission.
Sunday, March 14, 2010
Abetment to suicide is a big deal!
The Supreme Court in the case of Gangula Mohan Reddy v. State of Andhra Pradesh [JT 2010 (1) SC 17] discussed the meaning of the word ‘suicide’ and has done the much awaited task of constraining the ever-widening definition of ‘abetment to suicide’. It has been stated that mere discord and differences which are part of day to day life cannot form the basis of conviction under S. 306 of IPC for abetting suicide. For that, there has to be a clear mens rea and it requires an active or direct act which led the deceased to commit suicide.
Supreme Court on private defence
The Supreme Court in its judgment delivered on 15.01.2010 in Darshan Singh v. State of Punjab (2010 AIR SCW 832) elaborates the scope and foundation of the right to private defence. Justice Dalveer Bhandari in his decision has discussed the march of law which led to the evolution of principle of right to private defence and the said judgment can be said to be a comprehensive ready referencer on this principle. The law takes the baton ahead for you and says that “The law does not require a law abiding citizen to behave like a coward when confronted with an imminent unlawful aggression.... there is nothing more degrading to the human spirit than to run away in face of danger.” The key points emerging out of this decision in respect of right to private defence are:
• Self preservation is the basic human instinct recognized in criminal jurisprudence
• It is available only in necessity of averting a sudden impending danger
• A mere reasonable apprehension is enough to claim this right
• It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude
• Accused need not take any specific plea of self defence; however, it can be assumed from the material on record
• Self preservation is the basic human instinct recognized in criminal jurisprudence
• It is available only in necessity of averting a sudden impending danger
• A mere reasonable apprehension is enough to claim this right
• It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude
• Accused need not take any specific plea of self defence; however, it can be assumed from the material on record
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