SJA e-NEWSLETTER Official Newsletter of Jammu & Kashmir Judicial Academy (For internal circulation only)
Volume 3 Monthly May 2020
Patron-in-Chief From the Editor’s Desk Hon’ble Ms. Justice Almost whole of the world is woefully grappling with the Gita Mittal worst pandemic of the century. It is now more than five months Chief Justice on since the formal recognition by the world body, WHO, of the alarming situation created by Coronavirus. It is now, in the entire Governing Committee world, Europe and America being the worst sufferers, more than Hon’ble Shri Justice 2.3 Lakh people have lost lives and more than 33.40 Lakh Rajesh Bindal affected. Immense pressure is staring at the economic resources, Chairman medical institutions, medical professionals, administrative and Hon’ble Shri Justice police organizations. Judicial institutions are also facing great Tashi Rabstan difficulty in providing access to justice. Hon'ble Supreme Court
and High Courts are putting in place various innovative methods Hon’ble Smt. Justice Sindhu Sharma to ensure continued functioning of the Judicial institutions at all levels. At District and Taluk level also mechanism are being Hon’ble Shri Justice devised to address the urgent judicial needs of the citizens. It is Rajnesh Oswal becoming practically difficult to resume the regular court processes in the wake of threat of community spread of COVID- Hon’ble Shri Justice 19, and then subsequent waves of pandemic. Sanjay Dhar Government institutions are coming up with newer modes Members of dispensation of public services. Frontline workers are putting all resources and energy as Corona-warriors to minimize the Contents community spread of the virus. Information Technology is From Editor’s Desk ……...1 emerging as a viable and effective tool to keep the instructions of Legal Jottings……………..2 public service functioning. Information Technology is also a handy tool for the judicial institutions to provide urgent relief to Activities of Academy .....16 the needy consumers of justice. There are certain difficulties being Legislative Update ……...20 faced owing to the reason that there is no universal solution to Judicial Officers’ Column provide access to Justice. All sorts of ICT platforms are being ………………………………...21 employed to keep going, however common solution is far from near sight. Urgent and grave concern is projected by the Editor stakeholders as regards non availability of common platform. It is, Rajeev Gupta therefore, required that a universal platform is recognized, tested Director and put in place to facilitate all the stakeholders and consumers of Justice. Traditionally, as precedent and for regular trial procedures Composed by: presence of a litigant is requisite, especially an accused, at various Vishali Razdan stages of the case hearings. Methods are required to be developed Computer Operator where such presence can be secured through virtual mode.
LEGAL JOTTINGS
“Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but are mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy.” Dr Arijit Pasayat, J. in Zahira Habibullah H. Sheikh v. State of Gujarat, (2004) 4 SCC 158, para 19 CRIMINAL Criminal Appeal No. 1120 of 2010 provision has issued certain guidelines to be Raja @ Ayyapan v. State of Tamil Nadu followed while recording confession. These Decided on: April 1, 2020 guidelines have been issued to ensure that In this Criminal Appeal the Supreme the confession obtained in the pre Court has considered two vital questions : indictment interrogation by a police officer The first question for consideration is not lower in rank than a Superintendent of whether the appellant has made the Police is not tainted with any vice but is in confession voluntarily and truthfully. Held strict conformity with the well recognised that - The law of confession is embodied in and accepted aesthetic principles and Sections 24 to 30 of the Indian Evidence Act, fundamental fairness. These guidelines are: 1872. The confession is a form of admission “(1) The confession should be recorded consisting of direct acknowledgment of guilt in a free atmosphere in the same language in in a criminal charge. In this connection, it is which the person is examined and as relevant to notice the observations of Privy narrated by him; Council in Pakala Narayana Swami v. (2) The person from whom a Emperor (1939 PC 47) which is as under: confession has been recorded under Section “…..a confession must either admit in 15(1) of the Act, should be produced before terms of an offence, or at any rate the Chief Metropolitan Magistrate or the substantially all the facts which constitute Chief Judicial Magistrate to whom the the offence. An admission of a gravely confession is required to be sent under Rule incriminating fact, even a conclusively 15(5) along with the original statement of incriminating fact is not by itself a confession, written or recorded on confession….” mechanical device without unreasonable Supreme Court observed that, Section delay; 15(1) of the TADA Act is a self contained (3) The Chief Metropolitan Magistrate scheme for recording the confession of an or the Chief Judicial Magistrate should accused charged with an offence under the scrupulously record the statement, if any, said Act. This provision of law is a departure made by the accused so produced and get from the provisions of Sections 25 to 30 of his signature and in case of any complaint of the Evidence Act. Section 15 of the TADA Act torture, the person should be directed to be operates independently of the Evidence Act produced for medical examination before a and the Criminal Procedure Code. In Kartar Medical Officer not lower in rank than of an Singh {1994 (3) SCC 569}, the Supreme Court Assistant Civil Surgeon; while upholding the validity of the said
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(4) Notwithstanding anything The second question for consideration is contained in the Code of Criminal Procedure, whether the statement of two other co- 1973, no police officer below the rank of an accused is admissible in evidence. Held that - Assistant Commissioner of Police in the The confession statement of the co accused Metropolitan cities and elsewhere of a was recorded by the Superintendent of Deputy Superintendent of Police or a police Police (PW20) in Crime No.160/1990. The officer of equivalent rank, should investigate appellant was absconding, hence the any offence punishable under this Act of proclamation order was issued by the trial 1987. This is necessary in view of the drastic court and thereafter the case was split provisions of this Act. More so when the against the appellant. A separate trial was Prevention of Corruption Act, 1988 under conducted against the appellant and the Section 17 and the Immoral Traffic impugned judgment convicting the appellant Prevention Act, 1956 under Section 13, accused has been passed by the Designated authorise only a police officer of a specified Court. Having excluded the application of rank to investigate the offences under those Sections 24 to 30 of the Evidence Act to a specified Acts. confession recorded under Section 15(1) of (5) The police officer if he is seeking the the TADA Act, a self contained scheme is custody of any person for pre indictment or incorporated therein for recording the pre trial interrogation from the judicial confession of an accused and its custody, must file an affidavit sworn by him admissibility in his trial with co-accused, explaining the reason not only for such abettor or conspirator for offences under the custody but also for the delay, if any, in TADA Act or the Rules made there under or seeking the police custody; any other offence under any other law which (6) In case, the person, taken for can jointly be tried with the offence with interrogation, on receipt of the statutory which he is charged at the same trial. There warning that he is not bound to make a is thus no room to import the requirements confession and that if he does so, the said of Section 30 of the Evidence Act in Section statement may be used against him as 15 of the TADA Act. Under Section 15(1) of evidence, asserts his right to silence, the the TADA Act the position, in my view, is police officer must respect his right of much stronger, for it says, “a confession assertion without making any compulsion to made by a person before a police officer not give a statement of disclosure.” lower in rank than a Superintendent of It is also necessary to state here that the Police and recorded by such police officer confession recorded by the police officer is either in writing or on any mechanical device undoubtedly equated to a confession like cassettes, tapes or soundtracks from out recorded by a Judicial Magistrate under of which sounds or images can be Section 164 Cr.P.C. Thus, the said confession reproduced, shall be admissible in the trial of is a substantive piece of evidence. Therefore, such person or co accused, abettor or all the safeguards which are to be followed by conspirator for an offence under this Act or a Magistrate should have been followed by Rules made there under, provided that co- the police officer also. It is well settled that accused, abettor or conspirator is charged the satisfaction arrived at by the Magistrate and tried in the same case together with the under Section 164 Cr.P.C. is, if doubtful, then, accused.” the entire confession should be rejected. In the instant case, no doubt, the appellant was absconding. That is why, joint
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trial of the appellant with the other two determining 'small or commercial quantity' accused persons could not be held. As noticed under the Narcotic Drugs and Psychotropic above, Section 15 of the TADA Act specifically Substances Act, 1985. provides that the confession recorded shall Considering the statement of objects be admissible in trial of a co-accused for and reasons of the NDPS Act and the offence committed and tried in the same case Notification of 2001, the Court observed that together with the accused who makes the "it was never the intention of the legislature confession. We are of the view, that if for any to exclude the quantity of neutral substance reason, a joint trial is not held, the confession and to consider only the actual content by of a co-accused cannot be held to be weight of offending drug which is relevant for admissible in evidence against another the purpose of determining whether it would accused who would face trial at a later point constitute small quantity or commercial of time in the same case. We are of the further quantity". “Therefore, if it is accepted that it is opinion that if we are to accept the argument only the actual content by weight of offending of the learned counsel for the respondent, it is drug which is relevant for the purpose of as good as rewriting the scope of Section 15 determining whether it would constitute of the TADA Act as amended in the year 1993. small quantity or commercial quantity, in that case, the object and purpose of enactment of Criminal Appeal No. 722 of 2017 NDPS Act would be frustrated.” Hira Singh v Union of India Decided on: April 22, 2020 Civil Appeal No. 7231 of 2012 In a reference made to 3 Judge Bench in Aishwarya Atul Pusalkar v. Maharashtra 2017 the prime question for consideration Housing & Area Development Authority & was: "Whether while determining the small Ors. or commercial quantity in relation to narcotic Decided on: April 27, 2020 drugs or psychotropic substances in a In the present appeal, the Hon’ble mixture with one or more neutral substance Supreme Court recognized that the appellant (s), the quantity of neutral substance(s) is not has the reside in her matrimonial home. Such to be taken into consideration or it is only the right has a legitimate basis. Though Hon’ble actual content by weight of the offending Supreme Court asserted that the enforcement drug which is relevant for the purpose of mechanism adopted by appellant to enforce determining whether it would constitute her right is not legally acceptable, yet the small quantity or commercial quantity?". Court observed that a married woman is Over ruling its earlier decision of 2008 entitled to live, subsequent to her marriage, in E. Micheal Raj v. Intelligence Officer, with rest of her family members on the Narcotic Control Bureau, reported in (2008) husband’s side, in case it is a joint-property. 5 SCC 161 which had held that only the actual However, if she resides in an accommodation weight of the drug in a mixture will matter as an independent family unit with her under the NDPS Act, and that the weight of husband and children, the matrimonial home the neutral substances is to be excluded, the would be that residential unit. This right is Court held that the quantity of neutral embedded in her right as a wife. It is implicit substances in a mixture containing narcotic under the provisions of Section 18 of the drugs or psychotropic substances must be Hindu Adoption and Maintenance Act, 1956 taken into account along with the actual in situations that statute is applicable. The weight of the offending drug while Protection of Women from Domestic Violence
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Act, 2005 has recognised the concept of ambit of Prevention of Corruption Act, 1988. “shared household” in terms of Section 2(s) of Deciding in affirmative, the Court observed as this statute. Alienating an immovable asset to under: defeat the right of a victim lady under the said “44. As discussed earlier, the object of Act can constitute domestic violence, coming, the PC Act was not only to prevent the social inter-alia, within the ambit of the expression evil of bribery and corruption, but also to “economic abuse” under Section 3(iv) of 2005 make the same applicable to individuals who Act. A Magistrate having jurisdiction under might conventionally not be considered Section 19 of the said Act is empowered to public servants. The purpose under the PC pass a residence order to protect a victim of Act was to shift focus from those who domestic violence from being removed from are traditionally called public officials, to her shared household. But for a husband to those individuals who perform public duties. compel his wife to live in a separate Keeping the same in mind, as rightly household, which is not her matrimonial submitted by the learned senior counsel for home, an order from appropriate legal forum the appellant• State, it cannot be stated would be necessary. There cannot be forcible that a “Deemed University” and the officials dishousing of a wife from her matrimonial therein, perform any less or any different a home. public duty, than those performed by a The Hon’ble Court observed that the University simpliciter, and the officials appellant is the legally wedded wife of the therein. respondent no.8. However, she has been out 45. Therefore, for all the above reasons, of her matrimonial home since the year 2000 we are of the opinion that the High Court and such right to claim residence at was incorrect in holding that a matrimonial home cannot be enforced “Deemed University” is excluded from the invoking the writ jurisdiction. The Hon’ble ambit of the term “University” under Section Supreme Court while keeping into account 2(c)(xi) of the PC Act. the long pending dispute and to provide 46. Having come to the above justice, the Court invoked its jurisdiction conclusion, in the present case, the pivotal under Article 142 of Constitution in order to question is whether the appellant•trustee in conclude the dispute and to reach out justice the Board of ‘Deemed to be University’ is provided the accommodation to the appellant a ‘public servant’ covered under Section 2 according to the merits of the case. Moreover, (c) of the PC Act. Recently, this Court in the the Hon’ble Court also provided that in case case of CBI v. Ramesh Gelli, (2016) 3 SCC 788, the appellant wants to establish her right to dealt with the question as to whether reside in her matrimonial home with her Chairman, Directors and officers of a private husband, she shall be at liberty to approach bank before its amalgamation with a public the Family Court or any other forum of sector bank, can be classified as public competent jurisdiction. servants for prosecution under the PC Act...... Criminal Appeal No.989 of 2018 49. In order to appreciate the amplitude State of Gujarat v. Mansukhbhai Kanjibhai of the word “public servant”, the relevance of Shah the term “public duty” cannot be disregarded. Decided on: April 27, 2020 “Public duty” is defined under Section 2(b) of Supreme Court considered the scope of the PC Act, which is reproduced below: ‘Deemed University’ to be covered under the
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2(b) ‘public duty’ means a duty in the interpretation would result in an absurd discharge of which the State, the public or the situation especially when the 1946 Act community at large has an interest. extends to the whole of India and special 50. Evidently, the language of Section 2 force has been constituted within the Union (b) of the PC Act indicates that any duty Territory, in terms of Notification issued discharged wherein State, the public or under Section 3 of the 1946 Act community at large has any interest is called a public duty. The first explanation Criminal appeal No 102 0f 2011 to Section 2 further clarifies that any person M. Subramanium & Anr. v. S. Janaki & Anr. who falls in any of the categories stated under Decided on: March 20, 2020 Section 2 is a public servant whether or not Hon’ble Supreme Court reiterated that if appointed by the government. The second a person has a grievance that his FIR has not explanation further expands the ambit to been registered by the police or having been include every person who de facto registered proper investigation is not being discharges the functions of a public servant, done, then remedy of the aggrieved person is and that he should not be prevented from not to go to the high court under Art 226 of being brought under the ambit of public the constitution but to approach the servant due to any legal infirmities or magistrate concerned u/s 156(3)CrPC. technicalities.” Hon’ble Supreme Court reproduced the fallowing from the judgment in the case of Criminal Appeal No. 414 of 2020 Sudhir Bhaskarrao Tambe v. Hemant Kanwal Tanuj v. State of Bihar & Ors. Yashwant Dhage and others: Decided on: April 24, 2020 “This court has held in Sakiri Vasu v. The Hon’ble Supreme Court pronounced State of U.P., that if a person has a grievance that the Central Bureau of Investigation is that his FIR has not been registered by the competent to investigate any offence police or having been registered proper committed within a Union Territory, by an investigation is not being done then remedy accused residing in or employed in of the aggrieved person is not to go to the connection with the affairs of another State. High Court under Art 226 of the constitution This can be done by the CBI even without the but to approach the concerned magistrate consent of that State. The Court was under section 156(3)CrPC. If such an considering the issue whether the CBI was application is made and the magistrate is authorized to register cases against the public prime facie satisfied, he can direct FIR to be servants employed in connection with the registered or if it has already been registered affairs of the Government of Bihar. It was he can direct proper investigation to be done observed by the Court that— which includes in his discretion, if he deems it “That may be so, even if one of the accused necessary, recommending change of the involved in the given case may be residing or investigating officer, so that a proper employed in some other State (outside the investigation is done in the matter. We have Union Territory) including in connection with said this in Saikri Vasu case because what we the affairs of the State/local body/ have found in this country is that High Courts corporation, company or bank of the State or are flooded with writ petitions praying for controlled by the State/institution receiving registration of the first information report or or having received financial aid from State praying for a proper investigation.” Government, as the case may be…... Such
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“The rights of the parties must be determined in accordance with the provisions of law. What justice of the case entails, and what is just, due and the law says, is to be given to each one whether being a landlord or a tenant. 'The judge is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness'.” Sabyasachi Mukharji, J. in Idul Hasan v. Rajindra Kumar Jain, (1989) 4 SCC 550, para 8 CIVIL Civil Appeals No: 6875 of 2008. property only on account of existence of a Bhagwat Sharan (Dead through Lrs.) v. HUF, but then one alleging it has to prove it, Purshottam & Ors. that same was acquired from the nucleus of Decided on: April 3, 2020. the joint of property. {Reliance placed on: D.S. After thorough examination of the Lakshmiah & Ors v. L. Balasubramanyam & factual matrix of this case and discussing the Ors, (2003) 10 SCC 310 and Appasaheb law in depth, the Hon’ble Supreme dismissed Peerapa Chamdgade v. Devendra Peerapa the appeal, primarily on the following Chamdgade, (2007) 1 SCC 521} reasons:- In the instant case the appellant plaintiff It’s a settled position of law that the was no where able to show that the family burden is on the person who alleges that the was a HUF, nor that there was any nucleus of property is a joint property of a HUF, to any joint property from which the property in prove the same. General presumption is that a dispute was acquired . (paras 11, 12) Plaintiff Hindu family is presumed to be joint unless also had relied upon a written statement filed contrary is proved, but once a coparcener by Hari Ram in the above mentioned earlier separates, there is no presumption that HUF suit, wherein he had allegedly admitted that is discontinued or continued. {Reliance placed there was a trading joint family, but the Court on: Bhagwan Dayal v. Reoti Devi, AIR 1962 SC held that a trading joint family cannot be 287} construed to be a HUF. ( para 19) The mere fact that separated coparcener The Court further held that admission is choose to live together for trading together only a piece of evidence and not a conclusive would not give them the status of proof of what is stated therein, and here the coparceners under Mitakshara law. {Reliance admission was with regarding to trading joint placed on: Bhagwati Prasad Sah v. Dulhin family that can work together but that will Rameshwari Kuer, (1951) 2 SCR 603} not mean it’s a HUF. (para 19). {Reliance In the instant case it was admitted that placed on: Himani Alloys Ltd v. Tata Steel Madhav Prasad had left the village and gone Ltd. (2011) 15 SCC 273.} to Asok Nagar 70 years prior to 1988 when Finally the court held that it was not the suit was filed, and there was nothing to disputed that the plaintiff and some show that plaintiffs grandfather Umrao Lal defendants had filed a suit for eviction of an started a joint business with him. Held that - occupant on the ground that the said Merely alleged living together of the two property had been bequeathed to them by brothers did not constitute a HUF, once they Hari Singh as per the Will mentioned above. had already separated unless there is an Therefore as per the Doctrine of election and intention of re-union. Which was not in this its principle applicable to Will, they cannot case. accept a portion of it and deny the rest. Once The legal principle is that there is no they accept the Will, they also are deemed to presumption of a property being a joint have accepted the status of Hari Ram as the
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exclusive owner of all the property which is belatedly that too after the death of mentioned in the Will, i.e being the disputed employee who had not raised any grievance property. Plaintiff cannot be allowed to during his lifetime. Consideration of prayer approbate and reprobate or blow hot and made by respondent was not justified. cold in the same breath. (paras 24, 25) Hon’ble Supreme Court held, even if it {Reliance placed on: Rajasthan State is a case of resignation, the deceased Industrial Development & Invesment husband of respondent was entitled to Corporation v. Diamond and Gem payment of gratuity as he had put in Development Corporation, AIR 2013 SC 1241 qualifying service. and Karam Kapahi & Ors. v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753}. Civil Appeal No. 2366-67 of 2020 Bajaj Allianz General Insurance Co. Ltd. & Civil Appeal No. 2236 of 2020 Anr. v. The State of Madhya Pradesh Rajasthan State Road Transport Decided on: April 24,2020 Corporation Ltd. & Ors v. Smt. Mohani Devi Hon’ble Supreme Court held that the & Anr. line of approach adopted by the NCDRC Decided on: April 15, 2020 (National Consumer Disputes Redressal Hon’ble Supreme Court held that, the Forum) Is evidently incorrect. While “Gratuity shall be payable if the termination construing a contract of insurance it is not of employment is after 5 years of continuous permissible for court to substitute the terms service and such termination would include of contract. The court should always resignation as well” as provided under sec. 4 interpret the words used in contract that will (1)b of payment of gratuity act,1972. best explain the intention of the parties. The Single Judge of the High Court had held interpretation adopted by the NCDRC strikes that if voluntary retirement application was fundamentally at the purpose of policy and is not decided within period prescribed, as per not in accordance with the sound commercial clause 19-D(2) of pension scheme, reliance principles. The interpretation altered the was placed on clause 18-D(2) of RSRTC character of risk insured beyond the scope of standing order as per which an employee of policy as agreed between the parties. corporation who had rendered pensionable The provisions of an insurance contract service was entitled to seek voluntary must be imparted a reasonable business like retirement in view of law laid down in Sheel meaning bearing in mind the intention Kumar Jain v. New India Corporation Ltd. The conveyed by the words used in the policy appellants were directed to treat documents. The Court must interpret the respondent’s husband as having voluntarily words in which the contract is expressed by retired and release benefits to which he was the parties & not to embark upon making a entitled and pay the retiral benefits. The new contract for the parties. A reasonable Division Bench had reiterated the said construction must therefore be given to each position. The respondent’s husband had clause in order to give effect to the plain and yielded to position of non acceptance of obvious intention of the parties as application for voluntary retirement and has ascertainable from the whole instrument. therefore submitted his resignation. The The liability of insurer cannot extend to more acceptance of resignation was acted upon by than what is covered by insurance policy. In receiving terminal benefits. If that be the order to determine whether the claim falls position when writ petition was filed within the limits specified by the policy, it is
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necessary to define exactly what the policy On the question of relationship between the covered and to identify the occurrence of a institute and Dr. Gandhi, the Supreme Court, stated event or accident prior to the expiry of after considering various precedents, held policy that in this case, no regular employment was there as the terms of contract make it clear Civil Appeal No. 2235 of 2020 that it is a contract for service. Moreover, Sushilaben Indravadan Gandhi & Anr. v. from the date from which the said contract The New India Assurance Co. Ltd. & Ors. came into force, Dr. Gandhi ceased to be Decided on: April 15, 2020 regular employee and became an In this case, Hon’ble Supreme Court independent professional. Thereafter, the applied the principle of contra proferentum Bench held that the exclusion clause in the (i.e. the ambiguity of exclusion clauses is insurance contract is to be construed against generally construed against the insurer) and the Insurer in light of the contra proferentum ordered payment of around 38 lakhs and principle. Reliance was placed on several interest thereon to the widow of the precedents: {Industrial Promotion & deceased. Investment Corpn. of Orissa Ltd. v. New India A motor vehicle accident had taken Assurance Co. Ltd. (2016) 15 SCC 315, United place on 09.06.1997 near Kabhar Patiya, in India Insurance Co. Ltd. v. Orient Treasures which one Dr. Alpesh Gandhi lost his life. He (P) Ltd. (2016) 3 SCC 49, General Assurance was an honorary ophthalmologist with the Society Ltd. v. Chandumull Jain (1966) 3 SCR Rotary Eye Institute, Navsari and was 500.} travelling in the mini-bus of that particular Quoting from its decision in General institute which met with an accident due to Assurance Society Ltd. v. Chandumull Jain the negligence of its driver. The main (1966) 3 SCR 500 ''in a contract of insurance contention that arose was whether Dr. there is requirement of uberrima fides i.e. Gandhi’s association with the Rotary Eye good faith on the part of the assured and the Institute comes within the ambit of regular contract is likely to be construed contra employment or an outside expert on proferentem, that is, against the company in contract? The Institute, which was the case of ambiguity or doubt'', the Court insurer, had paid additional premium in observed - 'assuming that there is an accordance with IMT-5 endorsement, which ambiguity or doubt, the contra proferentum provided that the Insurer’s liability was rule referred to hereinabove, must be limited to payment of compensation for applied, thus making it clear that such bodily injury sustained by any passenger 'employment' refers only to regular other than those coming under the scope of employees of the Institute, which, as we have Workmen Compensation Act, 1923 and as far seen hereinabove, Dr. Alpesh Gandhi was as IMT-16 (which deals with general liability) certainly not'. The Bench thereafter set aside is concerned, no such additional premium the Judgment of the High Court and restored was paid. Therefore, if Dr. Gandhi was treated the award of the Tribunal. as an employee, he would not receive coverage as per terms of insurance contract. Civil Appeal No. 2375 of 2020 The MACT had held insurer liable and the Mohd. Asif Naseer v. West Watch Company relationship was held to be ‘Contract for Through Its Proprietor service’ and not ‘Contract of service’. The Decided on April 24, 2020 High Court, on appeal reversed this decision. In this case, the release application filed
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under the U.P. Urban Buildings (Regulation of the same may be determined from a case to Letting, Rent and Eviction) Act, 1972 case basis. The bench also referred to the (hereinafter ‘the rent control act’) was under decision in in the case of V.S. Krishnan v. question. The prescribed authority had Westfort Hi-Tech Hospitals (2008) 3 SCC allowed the application and directed the 363, which held that service of notice sent tenant to vacate the shop. The appeal filed by under certificate of posting would be the tenant was dismissed by the Addl. District sufficient where there are materials to show Judge, directing the tenant to vacate the that notices were sent, the burden is on the premises. Further, in a writ petition at the addressee to rebut the statutory High Court, the release application was presumption. The Supreme Court has dismissed as not maintainable for want of six reaffirmed that Notice sent under Certificate months prior notice as required under of Posting is sufficient, where mode of Section (21)(1)(a) Proviso of the Rent control service is not mentioned. Act. The High Court had set aside the release application granted in favour of the landlord Civil Appeal No. 2376 of 2020 on the primary finding that there was no Firm Rajasthan Udyog & Ors. v. Hindustan proof of service of notice to the tenant. Engineering & Industrial Ltd. In an SLP filed by the appellant, the Decided On: April 24, 2020 Supreme Court had to consider the issue The question for consideration in the whether a landlord had served proper notice present appeal was as to whether an to the tenant for vacation of premises in Arbitration Award, which determined the accordance with Section 21(1)(a) of the U.P. Compensation amount for the land to be paid Urban Building (Regulation of Letting, Rent under agreement for sale, can be directed to and Eviction) Act, 1972 be executed as a suit for specific The SC observed: performance of agreement, when the “It may be so that mere receipt of notice reference to the Arbitrator (as per the having been sent under certificate of posting, agreement) was only for fixation of price of in itself, may not be sufficient proof of service, land in question, and the Arbitration Award but if the same is coupled with other facts and was also only with regard to the same. circumstances which go to show that the The Supreme Court held that the award party had notice, the same could be held to be of the arbitrator was only with regard to the sufficient service on the party”. fixation of the price of the land and not for The Supreme Court firstly observed that the enforcement of the agreement. The Section 21 of the Rent Control Act does not award was only declaratory of the price of prescribe any particular mode of giving notice the land as per the agreement dated 01-02- to the tenant. The same could be given orally 1980. The appellant had the option either to or in writing. If it is in writing, then it is not accept the price or reject it. What was thus necessary that it should be sent only by executable was the agreement not the award. registered post. What is required is that 'the The relief granted by the court below for landlord has given a notice' in that behalf to execution of the sale deed in terms of award, the tenant. is thus outside the realm of the law, as the The Court then noted that, in terms of award did not contemplate the transfer of the judgment in Sumitra Devi v. Sampuran land in favour of the respondent, but only to Singh, (2011) 3 SCC 556, notice sent under determine the price of the land. certificate of posting is sufficient service, and Once the respondent had given up its
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claim of execution of sale deed in terms of The Supreme Court also applied the Agreement dated 01-02-1980, by principle under Section 90 of the Indian withdrawing the suit for specific performance Trusts Act, regarding which it said, "A bare of the agreement, which was permitted to be reading of this provision indicates that if a withdrawn unconditionally on 13-02-2006, mortgagee, by availing himself of his position the respondent had abandoned its claim for as a mortgagee, gains an advantage which execution of the sale deed. Thus the would be in derogation of the right of the respondent could not be permitted to achieve mortgagor, he must hold such advantage for the goal of the execution of sale deed by the benefit of the mortgagor". indirectly claiming for the execution of award, The circumstances of the case were when the direct claim of the execution of sale covered by the precedents laid down in the deed of agreement dated 01-02-1980 had cases Jayasingh Dnyanu Mhoprekar and been abandoned by respondent. Another v. Krishna Babaji Patil and Another, (1985) 4 SCC 162 and Namdev Shripati Nale Civil Appeal No. 4594 of 2010 v. Bapu Ganapati Jagtap and Another, (1997) Shankar Sakharam Kenjale (Died) 5 SCC 185. Through his LR's v. Narayan Krishna Gade & Anr. Civil Appeal No. 2378 of 2020 Date of decision: April 17, 2020 Quippo Construction Equipment Limited v. The Supreme Court reiterated the Janardan Nirman Pvt. Limited principle that right to redeem a mortgage can Decided on: April 29, 2020 be extinguished only by a process known to Four agreements read with Arbitration law. It was observed that- Clauses were signed between two parties. “It is well-settled that the right of While three agreements stipulated that New redemption under a mortgage deed can come Delhi shall be the designated “Venue”, one of to an end or be extinguished only by a them stated Kolkata as the “Place of process known to law, i.e., either by way of a Arbitration”. Arbitration Rules of the contract between the parties to such effect, by Construction Industry Arbitration a merger, or by a statutory provision that Association were to be followed and debars the mortgagor from redeeming the reference was agreed to be made in this mortgage. In other words, a mortgagee who regard vis-a-vis intricacies of the has entered into possession of the mortgaged proceedings. Due to the dispute arising property will have to give up such possession between the parties, Appellant invoked the when a suit for redemption is filed, unless he Arbitration Clause and notice to the is able to establish that the right”. Appellant, wherein a sole Arbitrator was Following the above established appointed and the proceeding were to be principle, the Supreme Court also opined that conducted in New Delhi. the re-grant to the Appellant’s predecessor The Respondent, however, disputed the based on actual possession as mortgagee existence of Arbitration Agreement between cannot be divorced from the existence of the parties and filed a suit in the Court of Civil underlying mortgagor and mortgagee Judge at Sealdah, praying that the agreements relationship between the parties. Therefore, be declared null and void and for permanent any benefit accruing to the mortgagee must injunction restraining the appellant from necessarily ensue to the Mirashi tenant- relying on the arbitration clauses contained mortgagor. in the agreement. Appellant’ s application
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was allowed and in Respondent's plaint was High Court. They sought for reckoning their returned. Following this, appeal was services as Additional District & Sessions preferred by the respondent before the Judges in fast track court for determining the District Court, contending, inter alia, that one seniority as District Judge. of the four agreements designated Kolkata as The Supreme Court observed that the the venue of arbitration. This plea was issue was settled against the petitioners in eventually dismissed and was challenged in various precedents such as: Debabrata Dash Calcutta High Court where plea decided in & Anr. v. Jayindra Prasad Das & Ors., (2013) 3 favor to the respondent. SCC 658; V.Venkata Prasad & Ors v. High The Supreme Court, in further appeal Court of A.P & Ors., (2016) 11 SCC 656; Kum held that non-participation in arbitration C. Yamini v. State of Andhra Pradesh (2019) proceedings would amount to waiver of right. 10 SCALE 834. It was observed as under: In Debabrata Dash, is was held that,once “It was possible for the respondent to incumbent is appointed to a post according to raise submissions that arbitration pertaining rule, his seniority has to be counted from the to each of the agreements be considered and date of his appointment and not according to dealt with separately. It was also possible for the date of his confirmation. The corollary of him to contend that in respect of the the above rue is that, where the initial agreement where the venue was agreed to be appointment is only ad hoc and not according made at Kolkata, the arbitration proceedings to rules and made as a stop-gap arrangement, be concluded accordingly. Considering the the officiation in such post cannot be taken facts that the respondent failed to participate into account for considering the seniority. in the proceedings before the arbitrator and Also, while dealing with another issue in did not raise any submission that the the case, the Court held that, “In the seniority arbitrator did not have jurisdiction that he list of District Judges, the inter se seniority was exceeding the scope of his authority, the between candidates who passed the Limited respondent must be deemed to have waived Competent Examination must be determined all such objections.” on the basis of their merit in the examination and not on the basis of their seniority in the Writ Petition (C) NO. 936/2018 erstwhile cadre.” Dinesh Kumar Gupta v. High Court of Rajasthan & Ors. Civil Appeal No. 6076 of 2009 Decided on: April 29, 2020 Shivkumar & Ors. v. Sharanabasappa & Hon'ble Supreme Court was dealing Ors. with the following issues among others; Decided on: April 24, 2020 “whether the judicial officer promoted Supreme Court considered the scope of on ad-hoc basis as Additional District & remand of civil case by the Appellate Court. It Sessions Judges to man the fast track court in would be profitable to quote the observations the State and who were substantively of the Court, as under: appointed to the cadre of the District Judge, “25.2. Rule 23A came to be inserted in are entitled to seniority from the date of their Order XLI CPC by way of the Code of Civil initial ad-hoc promotion?” Procedure (Amendment) Act, 1976. Prior to The issue was raised by Rajasthan this amendment, it was generally accepted by Judicial Officers association in a writ petition the Courts that although under Rule 23, an filed against the seniority list prepared by the order of remand could be made only on
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reversal of a decree disposing of suit on a proper in a given case because the First preliminary point but, the Appellate Court has Appellate Court itself is possessed of the inherent power of remanding a case jurisdiction to enter into facts and appreciate where it was considered necessary to do so in the evidence. There could, of course, be the interest of justice. Some of the High several eventualities which may justify an Courts had made similar provisions by way of order of remand or where remand would be their respective amendments. Insertion of rather necessary depending on the facts and Rule 23A in Order XLI by the Amending Act of the given set of circumstances of a case. 1976 makes it explicit that even when the suit 25.4.1. The decision cited by the learned has been disposed of otherwise than on a Counsel for the appellants in the case of preliminary point and the decree is reversed Mohan Kumar (supra) is an apt illustration as in appeal, the Appellate Court shall have the to when the Appellate Court ought to exercise power of remand, if a re-trial is considered the power of remand. In the said case, the necessary. appellant and his mother had filed the civil 25.3. A comprehension of the scheme of suit against the Government and local body the provisions for remand as contained in seeking declaration of title, perpetual Rules 23 and 23A of Order XLI is not injunction and for recovery of possession in complete without reference to the provision respect of the land in question. The Trial contained in Rule 24 of Order XLI that Court partly decreed the suit while holding enables the Appellate Court to dispose of a that the plaintiffs were the owners of the land case finally without a remand if the evidence in dispute on which trespass was committed on record is sufficient; notwithstanding that by the respondents and they were entitled to the Appellate Court proceeds on a ground get the encroachment removed; and it was entirely different from that on which the Trial also held that the Government should acquire Court had proceeded. the land and pay the market value of the land 25.4. A conjoint reading of Rules 23, 23A to the appellant. Such part of the decree of the and 24 of Order XLI brings forth the scope as Trial Court was not challenged by the also contours of the powers of remand that defendants but as against the part of the when the available evidence is sufficient to decision of the Trial Court which resulted in dispose of the matter, the proper course for rejection of the claim of the appellant for an Appellate Court is to follow the mandate of allotment of an alternative land, the appellant Rule 24 of Order XLI CPC and to determine preferred an appeal before the High Court. the suit finally. It is only in such cases where The High Court not only dismissed the appeal the decree in challenge is reversed in appeal so filed by the appellant but proceeded to and a re-trial is considered necessary that the dismiss the entire suit with the finding that Appellate Court shall adopt the course of the plaintiff-appellant had failed to prove his remanding the case. It remains trite that ownership over the suit land inasmuch as he order of remand is not to be passed in a did not examine the vendor of his sale deed. routine manner because an unwarranted In the given circumstances, this Court order of remand merely elongates the life of observed that when the High Court held that the litigation without serving the cause of the appellant was not able to prove his title to justice. An order of remand only on the the suit land due to non-examination of his ground that the points touching the vendor, the proper course for the High Court appreciation of evidence were not dealt with was to remand the case to the Trial Court by by the Trial Court may not be considered affording an opportunity to the appellant to
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prove his title by adducing proper evidence in for the first time was published along with addition to what had already been adduced. final result dated 10.04.2010, he cannot be Obviously, this Court found that for the stopped from challenging the criteria of conclusion reached by the High Court, a case selection and the entire process of selection. for re-trial was made out particularly when Further when the written examination as the Trial Court had otherwise held that the notified earlier was scrapped and every appellant was owner of the land in dispute eligible candidate was called for interview, and was entitled to get the encroachment that too only by Chairman of the Commission removed as also to get the market value of the whereas decision regarding criteria of land. Such cases where retrial is considered selection has to be taken by Commission, the necessary because of any particular reason candidates have every right to challenge the and more particularly for the reason that entire selection process so conducted. adequate opportunity of leading sufficient evidence to a party is requisite, stand at [IN RE: GUIDELINES FOR COURT entirely different footings than the cases FUNCTIONING THROUGH VIDEO where evidence has already been adduced CONFERENCING DURING COVID-19 and decision is to be rendered on PANDEMIC, Order dated 06.04.2020] appreciation of evidence. It also remains trite Hon'ble Supreme Court, in the wake of that an order of remand is not to be passed impending Covid-19 pandemic and exigency merely for the purpose of allowing a party to to provide access to justice in urgent hearing fillup the lacuna in its case. matters, issued general guidelines to conduct 25.5. It gets perforce reiterated that the court proceedings through Video- occasion for remand would arise only when conferencing. Exercising it’s power under the factual findings of Trial Court are Article 142 of the Constitution, the Court, reversed and a re-trial is considered hence, issued the following guidelines: necessary by the Appellate Court. All measures that have been and shall be taken by this Court and by the High Courts, Civil Appeal No. 2103 of 2020 to reduce the need for the physical presence Ramjit Singh Kardam & Ors. v. Sanjeev of all stakeholders within court premises and Kumar & Ors. to secure the functioning of courts in Decided on: April 8, 2020 consonance with social distancing guidelines The Supreme Court has reiterated that and best public health practices shall be in the matters of public employment when deemed to be lawful; there are glaring illegalities committed in the The Supreme Court of India and all High procedure for selecting the candidates, the Courts are authorized to adopt measures principle of estoppel by conduct or required to ensure the robust functioning of acquiescence has no application. the judicial system through the use of video- Referring to earlier judgments in conferencing technologies; Rajkumar & Ors. v. Shakti Raj & Ors., 1997 (9) Consistent with the peculiarities of the SCC 527 and Bishnu Biswas & Ors. v. Union of judicial system in every state and the India & Ors., 2014 (5) SCC 774, the Court dynamically developing public health observed that— situation, every High Court is authorised to “When candidate is not aware of the determine the modalities which are suitable criteria of selection under which he was to the temporary transition to the use of subjected in the process and the said criteria video-conferencing technologies;
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The concerned courts shall maintain a conferencing for dispensation of Justice and helpline to ensure that any complaint in as guardians of the Constitution and as regard to the quality or audibility of feed shall protectors of individual liberty governed by be communicated during the proceeding or the rule of law. immediately after its conclusion failing which no grievance in regard to it shall be [IN RE: COGNIZANCE FOR EXTENSION OF entertained thereafter. LIMITATION, Order dated 23.03.2020] The District Courts in each State shall The 3-judge bench of the Supreme Court adopt the mode of Video-conferencing invoking its jurisdiction under Article 142 prescribed by the concerned High Court. read with Article 141 of the Constitution of The Court shall duly notify and make India extended limitation period for filing available the facilities for video-conferencing appeals from High Courts or Tribunals on for such litigants who do not have the means account of COVID-19 pandemic. or access to video-conferencing facilities. If In order to ensure that lawyers and necessary, in appropriate cases courts may litigants do not have to physically come to file appoint an amicus-curiae and make video- petitions, applications, suits, appeals or other conferencing facilities available to such an proceedings in respective Courts or Tribunals advocate. across the country including the Supreme Until appropriate rules are framed by Court, it directed, the High Courts, video-conferencing shall be “a period of limitation in all such mainly employed for hearing arguments proceedings, irrespective of the limitation whether at the trial stage or at the appellate prescribed under the general law or Special stage. In no case shall evidence be recorded Laws whether condonable or not shall stand without the mutual consent of both the extended w.e.f. 15th March 2020 till further parties by video-conferencing. If it is order/s to be passed by this Court in necessary to record evidence in a Court room present proceedings.” the presiding officer shall ensure that The Order of the Court is an outcome of appropriate distance is maintained between suo motu cognizance of the situation by the any two individuals in the Court. Supreme Court, arising out of the challenge The presiding officer shall have the faced by the country on account of COVID-19 power to restrict entry of persons into the Virus and resultant difficulties that may be court room or the points from which the faced by litigants across the country in filing arguments are addressed by the advocates. their petitions, applications, suits, appeals or No presiding officer shall prevent the entry of other proceedings within the period of a party to the case unless such party is limitation prescribed under the general law suffering from any infectious illness. of limitation or under Special Laws. However, where the number of litigants are The order of the Supreme Court order many the presiding officer shall have the shall be binding on all Courts, Tribunals and power to restrict the numbers. The presiding Statutory Authorities. officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number. Courts throughout the country particularly at the level of the Supreme Court and the High Courts have employed video-
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ACTIVITIES OF THE ACADEMY
Interaction of Hon’ble Mr Justice Rajesh be utilised to get help from the CJA faculty Bindal with Judicial Officers and Trainee members. CJA faculty would be requested to Munsiffs of 2019 batch make online presentations and deliberations Because of the impending Covid-19 with trainee officers, for better learning even pandemic the activities of the Judicial in the times of constraints. Justice Bindal also Academy remained subdued. Since third interacted with some of the judicial officers week of March 2020, training programmes in who had shown their interest and inclination the Judicial Academy remain suspended. In in contributing towards the initiatives of the that view of the matter Induction Training for Academy. Senior judicial officers were also newly selected Munsiffs (Civil Judges Jr. guided by Justice Bindal to be usefully Division) 2019 – batch was deferred for one engaged in endeavours of the Academy to month. Hon’ble Mr. Justice Rajesh Bindal, create a pool of knowledge and legal Chairman High Court Committee for the resources for uplifting the standards of Judicial Academy earnestly desired the justice dispensation. The judicial officers and academic activities to be initiated again, trainee officers got inspiration on working for especially the Induction Training programme, the cause of quality dispensation of justice. by employing all the available resources, The officers were also told to contribute including the digital platform and online towards the cause of social service in the discussion forums. In this regard Justice Scenario of pandemic. Bindal interacted with the Trainee Munsiffs Under the guidance of Justice Bindal the through video-conferencing, facilitated by Judicial Academy has initiated the activity of eCourts staff of the High Court. Justice Bindal collective working and knowledge sharing, to highlighted the need to continue the academic enable each of the trainee officer to learn activities with renewed vigour, inspite of the from each other's efforts. In this regard some problems and difficulties posed by the in service judicial officers of various ranks impending pandemic. The trainees were told have also been requested to work with the that the process of achieving excellence training officers in preparing handbooks on should never stop and for that efforts should different subjects and topics, which then shall be made to indulge in useful activities with be compiled as quick reference guides. This whatever resources are handy. They must would enable the new entrants in the judicial explore the new ideas for personal system to quickly adopt to the atmosphere of development. This would include reading not judicial institution and to get benefited by the just the law books, which is of course collective efforts made by the judicial officers. essential prerequisite for a judicial officer, but To begin with, the trainee officers have been also the literature of varied interests. He also given assignments to work on the topics of advised then to find opportunity to engage in civil and criminal procedure, in which they pursuits of knowledge, and in this regard would work together and compile the case attending webinars and online discussions on law handed down by the Supreme Court, High the legal forums is important. Justice Bindal Court of Jammu and Kashmir and other High recalled that the trainee officers had got very Courts. This would be helpful in compiling useful learning inputs at Chandigarh Judicial useful case law requisite at all stages in the Academy in two weeks of training trial of civil and criminal cases. This would programme, and the resources available shall save the time and energy of the officers.
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Webinars and online discussions anxiety in this period of lockdown.In this Judicial officers are utilising the time connection following remedial measures available with them in attending Webinars were undertaken for different sections of and online discussions organised on digital society: platforms by eminent institutions. In these Redressal of the Grievances of the discussions Hon’ble Judges of the Supreme Labourers /Daily Wagers belonging to the Court and various High Courts, prominent other parts of the Country and Stranded in Senior Advocates and law professional held the UTs of J&K and Ladakh: discussions and made presentations on In order to redress the grievances of the subjects of varied legal interests and latest labourers /daily wagers belonging to the developments of law. Theses discussions are other parts of the country and stranded in the proving to be useful in professional UTs of J&K and Ladakh, a helpline was development and broadening the sphere of created, which is managed by Mr. Amit knowledge of law. The digital platforms have Sharma, Secretary, DLSA Ramban given entirely a new medium for intellectual (9419035006) and Ms. Rafia Hassan, discourses, which shall further strengthen in Secretary, DLSA Anantnag (9149450377). times to come. This medium of discussions is Ever since the helpline was created 825 calls expected to be futher explored and shall have been received which were redressed by continue to prove beneficial post Covid-19 providing ration, food stuff etc. era. Judicial Academy provided useful inputs Redressal of the Grievances of the to the judicial officers on such Webinars and People including the Students belonging to discussion forums. Many such resources were the UTs of J&K and Ladakh: shared with the officers for their benefit. As the panic across the country engulfed far and wide, another helpline to redress the Activities of JK SLSA amidst COVID-19 grievances of the people including the Pandemic students belonging to the UT’s of J&K and The COVID-19 pandemic has certainly Ladakh who were stranded outside in other changed the world with more than half of parts of the Country was created with Mr. humanity now under some form of lockdown Faizan-ul-HaqIqbal (9622200042) and Ms. resulting in multifarious problems of different Swati Gupta (9419190340), Secretaries, DLSA magnitudes including shelter for the people Baramulla and Samba respectively as its stranded out of their homes, food for nodal officers. In this helpline as many as labourers/daily wagers, no class-work and 1458 calls were received and redressed outdoor activity for the students, medical Senior Citizens: issues of senior citizens, grievances of victims Realising the fact that the elderly are of domestic violence & survival of other doubly effected by the COVID-19 lockdown marginalized sections of society. and are not only vulnerable to contracting the To mitigate the sufferings of many, J&K virus in view of their old age but are in SLSA under the guidance of Hon’ble Ms. tremendous difficulty to manage their day-to- Justice Gita Mittal, Chief Justice, High Court of day needs, particularly groceries, medicines J&K and Patron-in-Chief J&K SLSA & Hon’ble etc, JK SLSA launched another helpline Mr. Justice Rajesh Bindal, Executive comprising of six nodal officers to specifically Chairman, J&K SLSA drew up a help and facilitate the senior citizens who live comprehensive plan to reach out to people in alone and are unable to step out to get distressand help them fight their fears and medicines, groceries etc. Moreover, their
17 SJA e-Newsletter mandatory hospital visits were also facilitated (9419092103), Ms. Spalzes Angmo by the officers on the helpline. In this helpline (9419341131) and Mr. Tsewang Phuntsog 238 calls were received and redressed. (9419978757). Since the launch of the Victims of Domestic Violence: helpline on 16th April, 2020, a total of 6849 The present scenario created by the calls involving 7929 youngsters were COVID-19 Pandemic, has made the legal aid received up till 30 April, 2020. imperative and more demanding. The lives of Transgenders: women could not be put on hold till we JK SLSA also conducted a survey activity emerge out of the pandemic. JK SLSA is to identify the transgender community already engaged in providing legal aid to the members across UT’s of Jammu and Kashmir needy and distressed women especially and Ladakh. A total of 680 transgender were victims of domestic violence. The PLVs are the identified. This community earns its first line of contact with the victims of livelihood by alms being offered by the domestic violence and other crimes against people. JK SLSA reached out to them and with women. They have been educated on the the help of administration and NGO’s issue and are providing legal aid to the needy provided ration/food stuff to them. victims. JK SLSA is also coordinating with the KARONA Activity for Children: police stations and retainer lawyers to An initiative to enhance creative redress incidents of violence being faced by instincts of youngsters has been coupled with women. offering counselling during the current times In order to increase tele/online legal of novel CORONA-19 Lockdown. and counselling services for women and girls, The initiative of J&K SLSA began in teams of women lawyers have been collaboration with Directorates of School nominated in each district of the UTs of J&K Education Jammu, Kashmir and Ladakh by and Ladakh by SLSA, to coordinate with One forming a creative activity forum, “ACTIVITY Stop Centres (OSCs) and officials handling KARO NA” to engage the children in Women Helpline Number 181 .During the constructive activities during the lockdown lockdown period, 19 incidents of domestic period due to the COVID-19 pandemic. Under violence were reported in UT of J&K, whereas, this activity number of students in the age no such incident was reported in UT of group of 03-06 years exhibited their artistic Ladakh. skills by submitting paintings, self-composed Guidance to the Youngsters: poems on the topic “Save the Planet”. The Sensing multifarious problems being students in the age group of 07-10 years confronted by youngsters amidst Lockdown, submitted posters, short stories and slogans JK SLSA launched Helpline to address the on the topic “Advantages of Lockdown in the queries of youngsters relating to their wake of COVID-19 Pandemic” or “COVID-19 educational guidance, e-learning, general Hygiene Practices”. Moreover, students in the knowledge about art galleries and world age group of 11-15 years submitted museums in addition to counselling related to photographs and articles and slogans on the their intellectual and physical well being. The topic “Preservation of Rich Heritage of our Helpline is being manned by six secretaries of Composite Culture”. Uptill 25.04.2020, 706 DLSAs namely Mr. Naushad Ahmad Khan entries had been received. (9622283677), Ms. Sandeep Kour The process of helping the Countrymen (9419223000), Mr. Noor Mohd. is going on with zeal and enthusiasm. (9419005744), Mr. Khursheed-ul-Islam
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Special eCourts Initiatives of the High of exceptionally urgent cases from the Court of Jammu & Kashmir residence(s) of the Hon’ble Judges through In view of the widespread effects of virtual mode only. impending Covid-19 pandemic, the High 6. In majority of the cases heard through Court of Jammu & Kashmir has taken special Virtual mode, High Court is conducting initiatives to keep the justice delivery system hearing through the “Vidyo” app which is running and access to justice to remain easily available for download on mobile available. Following initiatives need special phones as well as desktop. Vidyo app is mention: recommended by e-Committee Supreme 1. In the wake of the nationwide lockdown Court of India as a VC solution for the imposed by Government of India to curb Courts and is hosted on NIC servers. A web the spread of the novel corona virus -link is sent by the Courts to Lawyers and (COVID-19), the High Court of J&K as well litigants for joining the hearing of the cases as the District Courts of UTs of J&K and through Video Conferencing. Ladakh are taking up exceptionally urgent 7. Such is the extent of adaptability of the matters for hearing through Virtual mode Information Technology tools by the High only. Court as well as lawyers of J&K that on 2. After the imposition of national lockdown some occasions, in a single case, more than due to COVID-19, access to all the courts of 30 lawyers appear before the court UTs of J&K and Ladakh including that of through Video Conferencing/calls. the High Court was closed by the High 8. Helpline numbers for redressal of Court and it was decided to hear complaints regarding Video Conferencing exceptionally urgent cases only through related issues in High Court as well as Video conferencing/calls. District Courts have also been issued and 3. To carry out the proceedings via video hosted on the official website of the High conferencing/calls, the Judges are hearing Court as well as on websites of all the urgent cases from their respective District Courts. residences/Offices and the lawyers are 9. In order to ensure easy access of litigants, advancing arguments in such listed matter lawyers and general public to information from their respective homes or offices. relating to a case, a separate and dedicated 4. It is pertinent to mention that during the space is earmarked on the official website lockdown period, High Court of Jammu and of the High Court for hosting orders and Kashmir has heard a total of 127 cases of judgments passed by different benches of exceptionally urgent nature through the High Court during the present COVID- Virtual mode while as District Courts of 19 lockdown. UTs of Jammu and Kashmir & Ladakh have 10. In a first in the country, during the COVID- heard 4344 matters. 19 lockdown period, High Court of Jammu 5. The protocol governing the hearing of cases and Kashmir has taken the initiative of through virtual mode has already been giving advance dates to the cases so as to issued by the High Court of J&K. As per the streamline further listing of the cases as directions issued by Chief Justice, the well as keeping lawyers and litigants concerned Registrar Judicial of the wing in informed about the progress of their coordination with e-Courts Wing of the respective cases. High Court, after seeking necessary orders, make necessary arrangements for hearing
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LEGISLATIVE UPDATE
Epidemic Diseases (Amendment) such by the State Government, by notification Ordinance, 2020 in the Official Gazette. President gave assent for promulgation The penal provisions can be invoked in of Epidemic Diseases (Amendment) instances of damage to property including a Ordinance, 2020, 5 of 2020, intended to clinical establishment, any facility identified protect healthcare service personnel and for quarantine and isolation of patients, property including their living/working mobile medical units and any other property premises against any kind of violence during in which the healthcare service personnel epidemics. Notification came to be issued by have direct interest in relation to the Ministry of Law and Justice (Legislative epidemic. Department) on 22nd April, 2020. The amendment makes acts of violence The Ordinance provides for making such cognizable and non-bailable offences. acts of violence cognizable and non-bailable Commission or abetment of such acts of offences and for compensation for injury to violence shall be punished with healthcare service personnel or for causing imprisonment for a term of three months to damage or loss to the property in which five years, and with fine of Rs.50,000/- to healthcare service personnel may have a Rs.2,00,000/-. In case of causing grievous direct interest in relation to the epidemic. hurt, imprisonment shall be for a term six The Ordinance is intended to ensure months to seven years and with fine of that during any situation akin to the current Rs.1,00,000/- to Rs.5,00,000/-. In addition, COVID-19 pandemic, there is zero tolerance the offender shall also be liable to pay to any form of violence against healthcare compensation to the victim and twice the fair service personnel and damage to property. market value for damage of property. The general public fully cooperates with Offences shall be investigated by an healthcare personnel and have expressed officer of the rank of Inspector within a their gratitude in a very organized manner period of 30 days, and trial has to be several times during the past month. completed in one year, unless extended by Nevertheless, some incidents of violence have the court for reasons to be recorded in taken place which has demoralized the writing. medical fraternity. It is felt that separate and Looking at the interventions required most stringent provisions for emergent times during the current Covid-19 outbreak, the are needed toact as effective deterrents to any Central Government has been given a such incidents of violence. concurrent role with the State Governments Violence as defined in the Ordinance to take any measures that may be needed to will include harassment and physical injury prevent the outbreak of an epidemic or the and damage to property. Healthcare service spread thereof. In addition, the scope of personnel include public and clinical inspection of vessels arriving or leaving the healthcare service providers such as doctors, country has been enlarged to include road, nurses, paramedical workers and community rail, sea and air vessels. health workers; any other persons empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and any persons declared as
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JUDICIAL OFFICER’S COLUMN
Note on Common Defects of Investigation TIP. Showing photograph of the accused to Affecting the Outcome of Trial the witness ahead of the TIP. Trial of criminal cases, as has been 9. Filing of a charge-sheet without generally experienced, is affected by the sanction (in case of prosecution of a following common defects, which if taken public servant or an offence, for instance, care of during the course of investigation against the central government); (S.17A would greatly improve quality of POCA, 2019 Investigation may also need investigation and thereby the criminal justice sanction) dispensation: 10. Not putting the right and entire 1. Delay in recording of FIR.— material before the sanctioning authority. Resulting in Loss of crucial evidence. And 11. Filing of a charge-sheet without Defence takes the argument of the case FSL/expert reports. being false and an afterthought. 12. Non seizure of crucial documents. 2. Errors in collection of evidence. 13. Not sending crucial evidence to For instance, omission to collect blood the FSL, especially, electronic evidence. stained earth by the IO. 14. Not involving independent 3. Failure to seek expert opinion. witnesses in a search/seizure or discovery For instance, not sending firearms for of an incriminating article. 15. Using stock comparison and for opinion that the witnesses. bullets seized from the spot have been 16. Failure to send bloodstained fired from the weapon recovered from the articles or other objects to the FSL. accused. 17. In the recording of a dying 4. Not recording statements u/s 164 declaration– not taking proper endorsement of the CrPC. from the doctor as to victim’s competency This increases the chances of the witness to make the statement (orientation and turning hostile/being won-over. Statement disposition). u/s 161 has no evidentiary value. 18. Delayed sending of the 5. Getting statement u/s 161 of the occurrence report to the Magistrate CrPC signed. concerned. 6. Not recording a statement u/s 161 19. In cases of evidence to be at all. obtained from outside India –Mutual Legal 7. Belated examination of crucial eye- Assistance Treaties (“MLATs”) to be witnesses. Though this is not always fatal. carefully examined and complied with and There are judicial precedents which have letters rogatory sought in the requisite recognized that if the officer was format. overburdened and also had Law & Order 20. Proper preparation in case of functions, delay, if explained, may not be extradition requests. Most extradition fatal. Much depends on cross examination requests fail because of lack of proper of officer on this count. filings. 8. Not holding a Test Identification 21. Proper witness protection and Parade. Or press conference before a TIP having witnesses fill bonds in terms of with the accused sitting alongside. Not Section 170(2) CrPC. Proper address covering the face of the accused before the verification for accused persons and the
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witnesses. the case, fair assistance to the judicial 22. Insist on admissions and denials. processes can be rendered. It is not that the (Section 294 of the CrPC). Investigating Officers are not instructed on 23. The Investigating Officer should these aspects during their professional not be the complainant also ( Mohan Lal vs. training but either they do not use their skills State of Punjab, (2018) SCC Online SC 974) effectively or they allow lethargy to takeover 24. Keeping in mind jurisdiction. their competence. It is also needed that the Police station’s jurisdiction is co-terminus superior Police Officers who are assigned the with the jurisdiction of the court taking job of supervising the investigation take cognizance. proper care to ensure that the defects do not 25. Withholding material exculpatory trickle in, intentionally or unintentionally. evidence. 26. Recording dying declaration Contributed by oneself when the same can be got Mr. Jatinder Singh Jamwal recorded through an Executive Magistrate/ Additional Distt. & Sessions Judge Judicial Magistrate. Kathua 27. Conducting narcoanalysis, taking specimen signatures, handwriting samples, Guiding principles for deferral of cross- conducting TIP without moving an examination of prosecution witnesses application to that effect before the Section 231(2) of the Code of Criminal jurisdictional court. Procedure, confers a discretion on the Judge It is needed that Investigating Officers to defer the cross-examination of any while investigating the cases have insight witness until any other witness or witnesses into theses common defects which lead to have been examined, or recall any witness failure of prosecution in proving the case for further cross-examination, in appropriate before the court of law. Some time very good cases. Judicial discretion has to be exercised cases turn bad owing to unprofessional in consonance with the statutory framework attitudes or lack of understanding by the while being aware of reasonably foreseeable Investigating Officers. Though the courts may, consequences. The party seeking deferral of while analysing evidence, may take holistic cross-examination under Section 231(2) of view of the evidence and these defects may the Code of Criminal Procedure must give not prove fatal, but it is requisite that the sufficient reasons to invoke the exercise of Investigating Officer, having the full discretion by the Judge. Deferral cannot be opportunity to prepare a truthful and asserted as a matter of right. foolproof case does his duty assigned to him Hon'ble Supreme Court considered this by law with complete diligence and aspect in Criminal Appeal No. 1321 of 2018, competence. All the resources available with decided on 30.10.2018, reported as State of the Investigating Officer need to utilised to Kerala v. Rasheed, AIR 2019 SC 721, and ensure fair investigation uninfluenced by the made important observations which are as outside factors. It is necessary for an under: Investigating Officer to weigh every factor “Several High Courts have held that the which is likely to influence investigation of discretion Under Section 231(2) of the Code the case or which may have crucial bearing of Criminal Procedure should be exercised on the trial of the case. After addressing all only in "exceptional circumstances", or when these issues arising during investigation of "a very strong case" has been made out.
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However, while it is for the parties to decide prosecution to muster and secure the the order of production and examination of presence of its witnesses as well as the witnesses in accordance with the statutory convenience of the defence counsel. Once scheme, a Judge has the latitude to exercise such a Schedule has been drawn up, all discretion Under Section 231(2) of the Code sides would be duty bound to adhere to it of Criminal Procedure if sufficient reasons are scrupulously. made out for deviating from the norm. (vii). While drawing up the Schedule of The circumstances in which the High dates for recording of the evidence for the Courts have approved the exercise of prosecution, as indicated above, the discretion to defer cross-examination, so as presiding judge would take advice from the to avoid prejudice due to disclosure of prosecution as to the order in which it strategy are: would like to examine its witnesses, Where witnesses were related to each clubbing witnesses pertaining to the same other, and were supposed to depose on facts or events together, for the same set of the same subject-matter and facts; dates. Where witnesses were supposed to (viii). If the defence intends to invoke the depose about the same set of facts. jurisdiction of the criminal court to However, the circumstances in which exercise the discretion for deferment of deferral has been refused are: cross-examination of particular witness(es) where the ground for deferral was the in terms of Section 231(2), or Section 242 mere existence of a relationship between (3) Code of Criminal Procedure, it must the witnesses; inform the presiding judge at the stage of where specific reasons were not given in setting the Schedule so that the order in support of the claim that prejudice would which the witnesses are to be called can be be caused since the defence strategy appropriately determined, facilitating short would be disclosed; deferment for cross-examination (when where no prejudice would have been necessary) so that the recording of caused. evidence continues, from day-to-day, The Delhi High Court, in Vijay Kumar v. unhindered avoiding prolonged State (Govt. of NCT of Delhi), laid down useful adjournments as are often seen to be directions for the conduct of criminal trials. misused to unduly influence or intimidate The directions are commendable, and the witnesses. relevant excerpts are reproduced (ix). It is the bounden duty of the presiding hereinbelow: judge of the criminal court to take “42. ...(vi). Since the expectation of law is appropriate measures, if the situation so that the trial, once it commences, would demands, to insulate the witnesses from continue from day-to-day till it is concluded, undue influence or intimidatory tactics or it is desirable that, keeping in mind the harassment. If the court has permitted possible time required for recording of deferment in terms of Section 231(2), or evidence (particularly of the prosecution), a 242(3) Code of Criminal Procedure, for detailed Schedule of the dates of hearing on cross-examination of a particular witness, which evidence would be recorded is drawn it would not mean that such cross up immediately after charge is framed - this, examination is to be indefinitely postponed taking into account not only the calendar of or scheduled for too distant a date. The the court but also the time required by the court shall ensure that the deferred cross-
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examination is carried out in the then on- ii. the case-calendar must specify the going Schedule immediately after the dates on which the examination-in-chief witness whose examination ahead of such and cross-examination (if required) of exercise has been prayed for. witnesses is to be conducted; There cannot be a straitjacket formula iii. the case-calendar must keep in view providing for the grounds on which judicial the proposed order of production of discretion Under Section 231(2) of the Code witnesses by parties, expected time of Criminal Procedure can be exercised. The required for examination of witnesses, exercise of discretion has to take place on a availability of witnesses at the relevant case-to-case basis. The guiding principle for a time, and convenience of both the Judge Under Section 231(2) of the Code of prosecution as well as the defence, as far Criminal Procedure is to ascertain whether as possible; prejudice would be caused to the party iv. testimony of witnesses deposing on seeking deferral, if the application is the same subject-matter must be dismissed. proximately scheduled; While deciding an Application Under v. the request for deferral Under Section 231(2) of the Code of Criminal Section 231(2) of the Code of Criminal Procedure, a balance must be struck between Procedure must be preferably made before the rights of the Accused, and the prerogative the preparation of the case-calendar; of the prosecution to lead evidence. vi. the grant for request of deferral The following factors must be kept in must be premised on sufficient reasons consideration: justifying the deferral of cross- possibility of undue influence on witness examination of each witness, or set of (es); witnesses; possibility of threats to witness(es); vii. while granting a request for possibility that non-deferral would enable deferral of cross-examination of any subsequent witnesses giving evidence on witness, the trial courts must specify a similar facts to tailor their testimony to proximate date for the cross-examination circumvent the defence strategy; of that witness, after the examination-in- possibility of loss of memory of the chief of such witness(es) as has been witness(es) whose examination-in-chief prayed for; has been completed; viii. the case-calendar, prepared in occurrence of delay in the trial, and the accordance with the above guidelines, non-availability of witnesses, if deferral is must be followed strictly, unless departure allowed, in view of Section 309(1) of the from the same becomes absolutely Code of Criminal Procedure. necessary; These factors are illustrative for guiding ix. in cases where trial courts have the exercise of discretion by a Judge Under granted a request for deferral, necessary Section 231(2) of the Cr.P.C. steps must be taken to safeguard The following practice guidelines witnesses from being subjected to undue should be followed by trial courts in the influence, harassment or intimidation. conduct of a criminal trial, as far as possible: i. a detailed case-calendar must be Contributed by: prepared at the commencement of the trial Shri Mohammad Ashraf Bhat after framing of charges; Sub-Judge, Bijbahara
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Child Prostitution, Innocence Turning Into Historical Background: Prostitution of Curse children dates to antiquity. Prepubescent Introduction: Children in India have boys were commonly prostituted in brothels always been deprived of their childhood, in ancient Greece and Rome. According to human rights, and dignity. Child prostitution Ronald Flowers, ‘’The most beautiful and is a significant global problem but it has not highest born Egyptian maidens were forced received adequate attention. It has forced into prostitution and they continued as migration of children for sexual purpose. prostitutes until their first menstruation,’’ There is a need of strict law regime and Chinese and Indian children were commonly enforcement not only for child prostitution sold by their parents. In Europe, child but also for the similar issues like child prostitution flourished until the late 1800’s. trafficking and child pornography. Minors accounted for 50% of individuals Prostitution: ‘’Prostitution’’ means the involved in prostitution in Paris. In India, “Sexual exploitation or abuse of any person prostitution is not a new thing, it has existed for commercial purpose. “Child prostitution” from the ancient times. is one of its kind. It is defined as, “the use of a Factors Responsible: Following are the child in sexual activities for financial causes for the child prostitution:- purpose.’’ This problem not only exists in i. Ill-treatment by the parents; India but is prevalent throughout the world. It iii. Children in bad company; is an outrageous evil as nothing can be more iii. Social customs prevailing; horrible than exploiting innocent children iv. Family prostitutes; sexually and engaging them in prostitution. As v. Lack of sex education to children; revealed in report in the year 1994, on child vi. Poverty and economic distress. prostitution, prepared by the Ministry of vii. Early marriage and desertion; human resource Development (HRD) GOI, viii. Prior incest and rape. 30% of child prostitutes are in six major cities Dangers faced by them: The innocents of India like, Delhi, Mumbai, Bangalore, are faced with those dangers which they Calcutta, Hyderabad and Chennai. They all would hardly understand at that age. These were under 20 years of age, and the survey are as under - further revealed that “Nepal” is the largest a. Sexual abuse; identifiable source of sending child b. Physical abuse that may result in serious prostitutes to Indian Brothels. injury or even death; What does Child Prostitution mean? c. Sexually transmitted diseases as serious Various organizations have tried to define as HIV/AIDS; child prostitution. Some of the definitions are d. Pregnancy at tender age; given as under; e. Drug addiction; UN Convention on the Rights of the f. Human trafficking. Child, 1990: according to this convention, Legal framework on child prostitution in “child prostitution is a sexual assault/ India: In India, we have various provisions to exploitation of child below the age of 18 years deal with such problems. Under the for remuneration in cash or kind.” Constitution of India, we have Article 23 International Labour Organization: It which deals with prohibition of trafficking in describes, “child prostitution as the use, human beings, forced labour and all forms of procuring, or offering of a child for exploitation. Article 39(e) and 39(f) deals prostitution.’’ with the health and strength of children and
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protection of their childhood. prostitution. Under Indian Penal Code, there are 4) The court directed to constitute a special laws enacted to curb prostitution. Like committee within a month from the we have section 366A, which makes judgement which would be I depth study into procreation of a minor girl from one place to these problems and evolve suitable schemes another punishable and section 366B, which as are appropriate and consistent with the makes importation of a girl below 21 years directions given above. punishable. Then we also have section 372 5) The court directed the rescue and and 373 were there is legal protection. rehabilitation of the child prostitute and their The Criminal Procedure Code also children should be kept under nodal protects girl from sexual exploitation. Section department namely, Department of women 98, is intended to give immediate relief to a and child under Ministry of welfare and woman or a female child under 18 of years Human Resources, GOI, which will devise abducted or detained for any unlawful suitable schemes for proper and effective purpose. implementation. The court directed the There are lot many Acts and Legislations ministry of social welfare, GOI for the passed for the protection of the child from establishment of juvenile Homes. (now such kind of abuses. But still the things are at children homes) same place. Conclusion and suggestions: Despite of Directions issued by the court to so many laws, children are abused like rehabilitate the prostitutes and their children anything which is often hidden from the in the case of Gaurav Jain v. UOI, 1997: The public eye. This problem is not only faced by court issued following directions; India but by the entire world at large. The 1) It is duty of the government and all sad part is, it does not receive appropriate voluntary organizations to take necessary medical and public health attention. The measures for protecting them from children involved in such activities rarely prostitution and rehabilitate them so that choose to be a part of this business, instead they may lead a life with dignity of person. they are tricked and lurked into the business. 2) The court directed that they should They go through such kind of traumatic be provided opportunity of education, psychological and physical abuse, that no financial support, developed marketing person like a child should ever experience. It facilities for goods produced by them. If is very difficult for them to escape. Lucky are possible, their marriages may be arranged so those who are able to, but still they remain that the problem of child prostitution can be traumatized for the rest of their lives. Others eradicated. remain sex workers for whole of their lives. 3) The court held that the economic Children are the upcoming future of the empowerment is one of the major factors that family, society and nation. Their protection is prevents the practice of dedication of the our basic duty. They should be at least young girls to prostitution. Referring to the provided with basic education in such an various measures taken by the different improved manner, so that they are able to states, the court directed that the social think by their own and choose a life with welfare department should undertake similar human dignity. Counselling programs should rehabilitation programs for the fallen victims be organized regularly in schools for the so that the foul practice is totally eradicated guidance of the children. Awareness about and they are not again trapped into child prostitution should be given to public
26 SJA e-Newsletter as well as children. Laws will not work unless Let us understand why the provision is there is a behavioral change in the mindset of incomplete in respect of enforcement. the people. Also the implementation of such Section 31 Penalty for breach of protection laws needs more strict actions so that it order by respondent.— deters the people, involved in such activities. (1) A breach of protection order, or of an interim protection order, by the Contributed by: respondent shall be an offence under this Act Ms. Cheena Sumbria and shall be punishable with imprisonment (Trainee Munsiff 2019 batch) of either description for a term which may extend to one year, or with fine which may Absence of complete express mode of extend to twenty thousand rupees, or with Enforcement of Monetary relief granted both. under Section 20 of DV act & the way out (2) The offence under sub-section (1) Protection of women from Domestic shall as far as practicable be tried by the violence Act, 2005 (for convenience “D.V Act") Magistrate who had passed the order, the came to be enacted by parliament in the year breach of which has been alleged to have 2005 with the Object to provide for more been caused by the accused. effective protection of the rights of women (3) While framing charges under sub- guaranteed under the constitution who are section (1), the Magistrates may also frame victims of violence of any kind occurring charges under section 498A of the Indian within the family and for matters connected Penal Code (45 of 1860) or any other therewith or incidental thereto. Section 12 provision of that Code or the Dowry provides for making an application by the Prohibition Act, 1961 (28 of 1961), as the aggrieved person to the Magistrate for grant case may be, if the facts disclose the of relief provided under the act. Sec 18, 19, 20, commission of an offence under those 21 & 22 provides various reliefs and among provisions. all these reliefs, the monetary relief which is If we carefully peruse the above provided under section 20 is claimed almost mentioned provisions, it is gathered that the in all the applications or we can say that in same is with respect to breach of protection every application this relief is included order or interim protection order. Now a irrespective of the fact that the relief of question arises whether order passed in similar nature i.e under section 125 Cr.P.C or terms of section 20, granting monetary relief under Sec 24 Hindu marriage act or any other is a protection order/interim protection provision had already been granted or not. So order within the meaning of section 31 of the far as the other similar reliefs are concerned Act. The answer is NO. there is clear provision for their enforcement. As per section 2(o) protection order However, on perusal of the D.V act though we means an order made in terms of Section 18 find two provisions for enforcement one of of the act. If we go by this, it is gathered that which is Section 31 and another is Section 20 for the breach of only those orders which are (6) of the D.V Act but the provisions are more passed under section 18, the provision under or less incomplete and there is a grey area for section 31 can be resorted to. which interpretations of Higher courts is This question was dealt with by Kerela required. Court wherein the Court held that provision Why incomplete mechanism for of section 31 can only be resorted when there enforcement of monitory reliefs? is a breach of protection order or interim
27 SJA e-Newsletter protection order made under section 18 of offences under section 31 shall be governed the Act. Breach of order of monetary relief by the provisions of the Code of Criminal does not attract section 31 [Kanaka Raj v. Procedure, 1973 (2 of 1974). State of Kerela, decided on 24.06.2009] (2) Nothing in sub-section (1) shall If this is the position then Section 31 prevent the court from laying down its own cannot be employed for enforcing monetary procedure for disposal of an application relief. Now the provision left is Section 20(6). under section 12 or under sub-section (2) of Let’s see what this provision says- section 23. Section 20 (6): Upon the failure on the From this provision an idea can be part of the respondent to make payment in drawn that for giving effect to the provisions terms of the order under sub-section (1), the of this act the court can lay its own procedure Magistrate may direct the employer or a and for that Code of Criminal Procedure, debtor of the respondent, to directly pay to 1973 can also be resorted. the aggrieved person or to deposit with the Resolving the issue, the High Court of court a portion of the wages or salaries or Kerela while dealing with this issue, has set debt due to or accrued to the credit of the the matter at rest and held that for respondent, which amount may be adjusted enforcement or recovery of monetary relief towards the monetary relief payable by the made under section 20, the provisions respondent. contained for enforcement under section 125 Here we find that order passed under Cr.P.C shall be resorted but with a this section can be enforced or money modification that no formal application shall ordered to be paid can be recovered by be required. [Kanchan v. Vikramjeet Setiya, directing the employer of the respondent to (2013 KHC 2115)] deduct the same from his wages or salary. So Similar view was taken in Mini far as the wives who are having salaried Shanmughan v. Shanmughan & Ors., [2012 husband are concerned they could be (3) KHC 814] & Sudhesh v. Umadevi & Anr., benefited from this provision but a grey area [2015 KHC 5275]. appears in cases where respondent is not DV Rules, 2006: Rule 6 Clause 5 may salaried person but is a professional or self also be taken into consideration. Therefore, employed person. In those cases to whom the the way out is adopting procedure under direction would be issued, as they don’t have section 125(3) Cr.P.C, resultantly Warrant for any employer? levy of fine under section 386 Cr.P.C. can be Keeping in view the above discussion issued and upon failure the respondent can we may say that the D.V act is not a complete be sent to jail as a mode of enforcement as legislation in terms of mode of enforcement of provided under 125(3) Cr.P.C. monetary relief. The way out: Contributed by: Problem arises only in grey area cases Tarun Mahajan, and in the absence of any express provision (Trainee Munsiff 2019 batch) dealing with the grey area the only provision in the act which could guide us is Sec 28. It says - Procedure.- (1) Save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and
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