Current Cases Along With Section Numbers

Sri Ganeshaya Namaha!!!
Om Sham Shanaischaraya Namaha!!!
News item dated 20/03/2020: The Nirbhaya case constitutes a crime which fits into the category of the
‘rarest of the rare’ cases because it violated collective conscience. The death penalty, as an exceptional
punishment, follows from the judgment that the case fit the criteria of the ‘rarest of the rare’.
Mukesh Singh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar Singh (31) - convicted for
the gang rape and murder of the 23-year-old physiotherapy intern Jyoti Singh in 2012 - were hanged
at 5.30 am.
"Those who did this to me, do not spare them" - These were the words that police officer Chaya
Sharma heard from Nirbhaya, the young student gang-raped on a moving bus and tortured with an iron rod
in December 2012. She hailed from Ballia in the eastern UP.
On Friday, as the Supreme Court confirmed the death sentence for four of the rapists, the officer mentally
thanked Nirbhaya for her consistent statements. "Evidence produced by the Delhi police is impeccable,"
said the three judges.
"If we got a conviction, it was due to Nirbhaya herself. Her consistent statements made it possible," said
Ms Sharma, who is now with the National Human Rights Commission.
She remembered when she first met the 23-year-old in hospital - fighting for her life after being brutalized
in what judges today described as a "demonic" attack - her attitude was striking.
"She never clammed up like rape victims usually do. Her attitude was very positive," recalled the officer.
Nirbhaya initially gave her statement to doctors at the Safdarjung hospital and two magistrates. In all three
statements, she remembered and shared details that ultimately helped the police.
These statements were treated as dying declarations after her death in a Singapore hospital 13 days after
the attack.
The biggest challenge before the police was that the rapists were unknown to the woman. "So our task was
very hard. We had to start the case from zero," Ms Sharma shared.
"Searching for the bus was very difficult. We short-listed about 300 buses and our team meticulously
worked around the leads we were getting."
Ms Sharma was assisted by a team of 100 men and women. "I had a very good team. They were very
thorough in their jobs. We concluded that the arrogance with which the accused had committed crime
showed that they were familiar to the area," she said as she explained how the police zeroed in on the six
men.
The police scrutinised CCTV footage but were not getting much from it. But then they saw ‘Yadav’
written on a white bus, which narrowed down their search.
"The driver or the cleaner had to be from the surrounding area. We worked around that and one by one, we
caught all of them," Ms Sharma said.
Within 18 hours of the attack, the police made the first arrest - bus driver Ram Singh. "After his
interrogation we arrested others."
As the Supreme Court confirmed that the convicts would hang, the police team involved in the
investigations felt vindicated. Ms Sharma allowed herself a moment of pride as she commented, "We filed
a charge-sheet in just 18 days. This chargesheet stood judicial scrutiny of two lower courts and now the
Supreme Court. If it was faulty, we would have been hanged instead."
Justice may have been delivered to Nirbhaya with Friday's hanging of four men who gang-raped her, but
the route she took that fateful night seven years ago still has dark zones where finding public transport is a
challenge and lewd comments by leering men is a common scenario faced by woman commuters.
The victims, a 22-year-old woman, Jyoti Singh and her male friend Mr Avindra Pratap Pandey, were
returning home on the night of 16 December 2012 after watching the film Life of Pi in Saket, South
Delhi. They boarded the bus at Munirka for Dwarka at about 9:30 pm. As the bus drove through the city,
she was raped and brutally assaulted by six persons, including a minor, before being thrown out on the
road along with her male friend who was also physically attacked. The male victim Awindra Pratap
Pandey was a software engineer from Gorakhpur, Uttar Pradesh, who lives in Ber Sarai, New Delhi; he
suffered broken limbs but survived.
Mukesh Singh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar Singh (31) were hanged on
Friday at 5.30 am for the savage gang rape and murder.
Six persons, including the four convicts and a juvenile, were named as accused in the case. Ram Singh, the
sixth accused, allegedly committed suicide in the Tihar Jail days after the trial began. The juvenile was
convicted of rape and murder and given the maximum sentence of three years' imprisonment in a reform
facility, as per the Juvenile Justice Act, was released in 2015.
=========================================
News item dated 17/03/2021: Court rejects bail of journalist accused of rape, says past sexual
encounter not linked to consent.
In February, Mumbai-based journalist Varun Hiremath was accused of raping a 22-year-old woman
in a hotel room in Delhi.
The Patiala House Court in Delhi has dismissed the anticipatory bail petition of 28-year-old
Mumbai-based journalist Varun Hiremath, accused of raping a 22-year-old woman, reported The
Indian Express on Wednesday. The court, in a ruling on March 12, said that consent cannot be
implicit from the complainant’s previous sexual encounter with the accused.
Hiremath was charged under Indian Penal Code Sections 376 (rape), 342 (wrongful confinement),
and 509 (insulting the modesty of a woman) on the basis of the woman’s complaint at the
Chanakyapuri police station.
Section 340 in The Indian Penal Code, wrongful confinement -
“Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limits is said to have committed the offence of wrongful
confinement.”
Section 342 in The Indian Penal Code, Punishment for wrongful confinement.—Whoever wrongfully
confines any person shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both. IPC 342 is
a Bailable offence.
Section 375 in The Indian Penal Code, Rape.—A man is said to commit “rape” who, except in the
case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under
any of the six following descriptions:—
(First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any stupe-
fying or unwholesome substance, she is unable to understand the nature and consequences of that
to which she gives consent.
(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.] STATE AMENDMENT
(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and
(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950,
sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on
male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured
hymen and bleeding vagina depicts same, minor contradictions in her statements they are not
of much value, also absence of any injury on male organ of accused is no valid ground for
innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor
Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence
of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand v.
State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.
Section 376 in The Indian Penal Code, Punishment for rape.—

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall also be liable to fine
unless the women raped is his own wife and is not under twelve years of age, in which cases, he
shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both: Provided that the court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven
years.
(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is
appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in
his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman’s or children’s insti tution
takes advantage of his official position and commits rape on any inmate of such jail, remand home,
place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and
commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to fine: Provided that the Court
may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten years. Explanation 1.—Where a
woman is raped by one or more in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape within the meaning of
this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether
called an orphanage or a home for neglected woman or children or a widows’ home or by any other
name, which is established and maintained for the reception and care of woman or children.
Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation.
Section 509 in The Indian Penal Code, Word, gesture or act intended to insult the modesty of a
woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any
sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that
such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,
shall be punished with simple imprisonment for a term which may extend to one year, or with fine,
or with both.
News item dated 1.5.2021: Gujarat Police have filed a case against a Facebook user for an alleged
derogatory post on April 29, 2021 against Prime Minister Narendra Modi, Union Home Minister
Amit Shah, Gujarat Chief Minister Vijay Rupani and deputy Chief Minister Nitin Patel.
According to the police, an FIR has been lodged against a Facebook user with the profile name Kapil
Kumar alias Kapil Parmar under Indian penal code sections 500 for defamation, 505 (1b) for
publishing a statement with intent to cause alarm in public, and 506 for criminal intimidation.
Section 500 in The Indian Penal Code 1860, Punishment for defamation.—Whoever defames
another shall be punished with simple imprisonment for a term which may extend to two years, or
with fine, or with both.
Section 499 in The Indian Penal Code, Defamation.—Whoever, by words either spoken or intended
to be read, or by signs or by visible representations, makes or publishes any imputation concerning
any person intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that
person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if
the imputation would harm the reputation of that person if living, and is intended to be hurtful to
the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to
make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to
defamation. Explanation 4.—No imputation is said to harm a person’s reputation, unless that
imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual
character of that person, or lowers the character of that person in respect of his caste or of his
calling, or lowers the credit of that person, or causes it to be believed that the body of that person is
in a loathsome state, or in a state generally considered as disgraceful.
Section 505 in The Indian Penal Code 1860, Statements conducing to public mischief.—
1(b) with intent to cause, or which is likely to cause, fear or alarm to the public, or to any
section of the public whereby any person may be induced to commit an offence against the
State or against the public tranquility;
Section 506 in The Indian Penal Code 1860, Punishment for criminal intimidation.—Whoever
commits, the offence of criminal intimidation shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both; If threat be to
cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause
the destruction of any property by fire, or to cause an offence punishable with death or
1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to
impute, unchastity to a woman, shall be punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both.
Section 503 in The Indian Penal Code 1860, Criminal intimidation.—Whoever threatens another
with any injury to his person, reputation or property, or to the person or reputation of any one in
whom that person is interested, with intent to cause alarm to that person, or to cause that person to
do any act which he is not legally bound to do, or to omit to do any act which that person is legally
entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
News item dated 6.5.2021:Himachal Pradesh High Court on Thursday rejected a bail plea of a 26-
year-old man accused of raping a 17-year-old girl and said, “No means no — the simplest of
sentences has become the most difficult for some men to understand.”
Justice Anoop Chitkara said, “The simplest of sentences have become the most difficult for some
men to understand. No does not mean yes, it does not mean that the girl is shy, it does not mean that
the girl is asking a man to convince her, it does not mean that he has to keep pursuing her”.
The victim was waiting for the bus at the bus stand on December 17, 2020, when the accused reached
her and offered a lift to drop her at home.
The victim boarded the vehicle in good faith but Kumar took her to a secluded place where he
started touching the victim inappropriately.
The girl said ‘NO’ to him but instead, the accused told her that if she would cry, then he would force
himself upon her. He then also asked her if she would marry him, to which the girl said no. After
that, the accused undressed the victim and had sexual intercourse with her.
Later he left for Solan, and the victim came home by bus. On reaching home, she narrated the entire
incident to her mother, and thereafter a complaint was lodged with the Rajgarh police, leading to
Kumar’s arrest under section 376 IPC and section 4 of the POCSO Act.
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished
with imprisonment of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall also be liable to fine
unless the women raped is his own wife and is not under twelve years of age, in which cases, he
shall be punished with imprisonment of either description for a term which may extend to two
years or with fine or with both: Provided that the court may, for adequate and special reasons to
be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven
years.
(2) Whoever,—
appointed; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in
his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a woman’s or children’s insti tution
takes advantage of his official position and commits rape on any inmate of such jail, remand home,
place or institution; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be
less than ten years but which may be for life and shall also be liable to fine: Provided that the Court
may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten years. Explanation 1.—Where a
woman is raped by one or more in a group of persons acting in furtherance of their common
intention, each of the persons shall be deemed to have committed gang rape within the meaning of
this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether
called an orphanage or a home for neglected woman or children or a widows’ home or by any other
name, which is established and maintained for the reception and care of woman or children.
Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of persons requiring
medical attention or rehabilitation.
Section 4, POCSO act or Protection of Children from Sexual Offences Act, 2012, Punishment for
penetrative sexual assault.-
Whoever commits penetrative sexual assault shall be punished with imprisonment of either
description for a term which shall not be less than seven years but which may extend to
imprisonment for life, and shall also be liable to fine.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any stupe-
fying or unwholesome substance, she is unable to understand the nature and consequences of that
to which she gives consent.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.] STATE AMENDMENT
(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950,
sec. 3 (w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on
male organ of accused Where a prosecutrix is a minor girl suffering from pain due to ruptured
hymen and bleeding vagina depicts same, minor contradictions in her statements they are not
of much value, also absence of any injury on male organ of accused is no valid ground for
innocence of accused, conviction under section 375 I.P.C. proper; Mohd. Zuber Noor
Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj). Penetration Mere absence
of spermatozoa cannot cast a doubt on the correctness of the prosecution case; Prithi Chand v.
State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.
Section 3, POCSO act or Protection of Children from Sexual Offences Act, 2012, Sexual Offences
against Children, A.-Penetrative Sexual Assault and Punishment thereof; Penetrative sexual
assault.-
A person is said to commit "penetrative sexual assault" if-
a. he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person; or
b. he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do so with him or any other person; or
c. he manipulates any part of the body of the child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or makes the child to do so with him or any other
person; or
d. he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to
such person or any other person.
Section 33(8) of POCSO act or Protection of Children from Sexual Offences Act, 2012, provides that
in appropriate cases, in addition to punishment, the Special Court may direct payment of
compensation to the child for any physical/mental trauma caused to the child or for immediate
rehabilitation. Pursuant to the parent Act, the POCSO Rules of 2012 dedicated Rule 7 to the
procedure and parameters of providing such compensation. Rule 7(3) enlisted the various
parameters/factors to be considered by the Special Court in deciding such compensation, such as-
gravity of the offence, expenditure incurred/likely to be incurred on medical treatment, loss of
educational opportunity, financial conditions, etc. Rule 7(4) and (5) state that after the amount is
decided/granted by the Special Court, it is to be disbursed from the Victims Compensation Fund or
such other scheme by the legal services authority within 30 days of receipt of such order.
News item dated 8.5.2021: "COVID SITUATION ALARMING": SUPREME COURT CALLS FOR
RELEASE OF PRISONERS
The Supreme Court on Friday asked states to release prisoners in a bid to decongest jails on account
of the virulent second wave of coronavirus sweeping the country. A high-powered panel in each state
has been tasked to determine the class of prisoners who can be released on parole or interim bail.
"The Covid situation is alarming and we have to decongest the prisons," Chief Justice NV Ramana
said, adding orders passed last year will have to be repeated.
In March last year, the court took suo motu cognisance (Suo Moto in India has been warranted
under Article 32 & Article 226 of the constitution.) of the risk of COVID-19 infection spreading
within and from the overcrowded prisons across the country while passing the orders for the
prisoners' release.
The court had reasoned that social distancing, an effective check against the virus spread, was
difficult in prisons.
Around 45,000 prisoners were released in March last year after the top court's order. The prisoners
did return to the jails after the completion of the parole period.
News item dated 15.5.2021:Observing that it is prima facie apparent that Tahir Hussain used his muscle
power and political clout to act as a kingpin in planning, instigating and fanning the flames of communal
conflagration, a Delhi Court on Saturday dismissed his bail applications in two Delhi Riots cases.
Additional Sessions Judge Vinod Yadav denied the bail to Hussain in two FIRs (there were two
applications both filed under section 439, The Code of Criminal Procedure on behalf of applicant) in
relation to information received by Sushrat Trauma Centre in relationto gunshot injuries sustained by
Pramod and Prince Bansal.
"The spread of riots on such a big scale in such a short time is not possible without a premeditated
conspiracy. So, now when the applicant found himself up against the wall, he cannot pass on the buck by
simply taking a plea that since he did not participate physically in the riots, so he has no role to play in the
riots. It is prima facie apparent that the applicant abused his muscle power and political clout to foment
communal violence in the area.", the court observed while denying bail to Hussain.
Section 439 in The Code Of Criminal Procedure, 1973, Special powers of High Court or Court of
Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of
the nature specified in subsection (3) of section 437, may impose any condition which it considers
necessary for the purposes mentioned in that sub- section;
(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or
modified: Provided that the High Court or the Court of Session shall, before granting bail to a person
who is accused of an offence which is triable exclusively by the Court of Session or which, though
not so triable, is punishable with imprisonment for life, give notice of the application for bail to the
Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody.
On the other hand, Special Public Prosecutor vehemently denied the grant of regular bail in both the cases
by arguing that the riots were part of large scale conspiracy hatched at various levels all over Delhi in the
aftermath of enactment of Citizenship Amendment Act, 2019 and the same did not take place
spontaneously.It was also argued that the riots were planned before the visit of US President Donald J.
Trump to India, as 'one group of particular community was aware of the fact that police system would be
busy in handling arrangements for Trump's visit to Ahmedabad in Gujarat on 24.02.2020 and 25.02.2020
and hence, the very timing of riots just prior to the visit of US President Donald J. Trump to India points
towards a very deep-rooted conspiracy behind the entire scenario.'Hearing the aforesaid submissions, the
Court vide a common order observed thus:'It is prima facie apparent that the 'riotous mob' armed with
'lethal weapons' had engaged in vandalism, looting and torching of public and private properties and their
main objective was to cause maximum damage to the lives and properties of persons belonging to other
community. Therefore, at this stage it cannot be said with certainty that the applicant did not have a
common object with the other persons of unlawful assembly.'Furthermore the Court did not found merits
in the argument put forth by Hussain that he has been been falsely implicated in the matter or that there is
no legally sustainable evidence available against him. 'In my considered opinion, the statements of
witnesses can be said to be delayed when the witnesses are known to the police and yet police do not
record their statements; whereas, in a case of rioting, police hardly has any idea as to who were the
witnesses.' The Court observed at the outset.Furthermore, the Court observed:'They were in a position to
mobilise the local persons from a particular community to come up in arms against the persons of other
community and law enforcement agencies to create havoc. The apparent object of execution of such
smaller conspiracy(ies) was to make the presence of a particular community felt, to create a rein of terror
and to destabilize the law and order position, so that the Central Government could be made to succumb to
their demands.'Observing that Hussain misused his official position and political clout to instigate the
rioters of his community to wreak havoc on the members of other community, the Court denied him the
grant of bail.
Section 438 in The Code Of Criminal Procedure, 1973, Direction for grant of bail to person
apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed
a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this
section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on
bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include
such conditions in such directions in the light of the facts of the particular case, as it may think fit,
including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and
when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were
granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such
accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer
to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides
that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in
conformity with the direction of the Court under sub- section (1).
News item 6 Jun 2021: Wife, Husband Die By Suicide Allegedly After Woman Subjected To Public
Humiliation: Tripura High Court Orders SIT Probe
The Tripura High Court on Friday constituted a Special Investigation Team (SIT) to probe into an incident
where a young lady was allegedly subjected to public humiliation and assault, and on account of which,
allegedly she died by suicide a couple of days later.
The Bench of Chief Justice Akil Kureshi and Justice S. Talapatra had, on Thursday (May 6) took suo
moto cognizance of a news item published in print and electronic media claiming that the video
recording of a young married lady in an extremely intimate and compromising position with a man was
shown in public and unable to bear the insults and humiliation, she committed suicide.
The Court also noted that while the public interest petition was being heard, the husband of the lady also
died by suicide. For the death of the young lady, the Court was told that police have registered an F.I.R. (in
connection with Woman's suicide) for offences punishable under Sections 306, 323 and 354 read with
Section 120B of the Indian Penal Code.
Section 306 in The Indian Penal Code, Abetment of suicide.—If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Section 323 in The Indian Penal Code, Punishment for voluntarily causing hurt.—Whoever, except
in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of
either description for a term which may extend to one year, or with fine which may extend to one thousand
rupees, or with both.
Section 334 in The Indian Penal Code, Voluntarily causing hurt on provocation.—Whoever voluntari-
ly causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to
cause hurt to any person other than the person who gave the provocation, shall be punished with
imprisonment of either description for a term which may extend to one month, or with fine which may
extend to five hundred rupees, or with both.
Section 354 in The Indian Penal Code, Assault or criminal force to woman with intent to outrage her
modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Section 120A in The Indian Penal Code, Definition of criminal conspiracy.—When two or more per-
sons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more parties to such agreement in
pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.]
Section 120B in The Indian Penal Code, Punishment of criminal conspiracy.—
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no
express provision is made in this Code for the punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding
six months, or with fine or with both.]
News item 2 July 2021: Name Of Victim In Sexual Offences Shall Not Be Mentioned In Any
Proceedings, Subordinate Courts Shall Be Careful: Supreme Court
A three-judge Bench of Supreme Court comprising of Justice Ashok Bhushan, Vineet Saran and M.R.
Shah took strong objections to a Sessions Court Judgment where the names of rape victim is mentioned.
The Bench held that all the subordinate courts should be careful not to reveal the identity of a rape victim
in any proceedings. The plea was preferred by a rape convict, sentenced by the trial court to ten years of
rigorous imprisonment for the rape of a minor girl under Section 376(1) and 342 of the Indian Penal Code,
affirmed by the Chattisgarh High Court.
Section 342 in The Indian Penal Code, Punishment for wrongful confinement.—Whoever wrongfully
confines any person shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one thousand rupees, or with both.
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less than seven years but which may be
for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped
is his own wife and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven years.
Section 228A of the Indian Penal Code, 1860 relates to disclosing the identity of the victim of certain
offenses etc. The provision lists the circumstances under which one can legally name and publish the
identities of the rape survivors, leaving the choice on adult victims. It is a cognizable, bailable and non-
compoundable offense triable by any magistrate with a punishment of upto two years and fine.
Section 228A in The Indian Penal Code, Disclosure of identity of the victim of certain offences etc.—
(1) Whoever prints or publishes the name or any matter which may make known the identity of any person
against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is
alleged or found to have been committed (hereafter in this section referred to as the victim) shall be
punished with imprisonment of either description for a term which may extend to two years and shall also
be liable to fine.
In 2018, a division bench of Justice Deepak Gupta and Madan B. Lokur issued a 9-point guideline to
protect the privacy and reputation of victims of rape crimes. In the same year, Delhi High Court imposed a
fine of Rs 10L on all media houses, which revealed the identity of the 8-year-old Kathua gangrape-cum-
murder victim. The Court directed to deposit the fine towards the victim compensation fund maintained by
the Jammu and Kashmir State Legal Services Authority for disbursement to victims/ families of the
deceased victims of sexual violence.
An identical provision exists under Section 23 of the Protection of Children from Sexual Offences Act
2012 (POCSO) prohibiting the disclosure of name, address, photographs, family details, school,
neighborhood or any other particulars which may lead to the disclosure of the identity of a victim of sexual
offences.
"Justice delayed, is justice denied." ~ William E. Gladston

Justice will not be served until those who are unaffected are as outraged as those who are. Benjamin
Franklin
No man is above the law, and no man is below it. Theodore Roosevelt
Injustice anywhere is a threat to justice everywhere. Martin Luther King, Jr.
The law is reason, free from passion. Aristotle
Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who
clearly recognize the voice of their own conscience usually recognize also the voice of justice.Aleksandr
Solzhenitsyn
There may be times when we are powerless to prevent injustice, but there must never be a time when we
fail to protest.Elie Wiesel
Each time a man stands up for an ideal or acts to improve the lot of others or strikes out against injustice,
he sends forth a tiny ripple of hope.Robert Kennedy
Every young law aspirant who has attended law school is ushered into the fraternity with the opening lines
in their orientation programme, “Welcome to this noble profession”. A question thus arises as to why the
legal profession is considered to be noble. The underlying ethos of the legal profession is the service to
society, akin to that of a doctor. The aim is to protect citizens from social diseases. The development of
jurisprudence as a separate discipline shows the importance of the philosophy of law. The concept of law
evolved from divine law given to man by God that law is the command of the sovereign backed by
sanction. No man is above the law, and no man is below it. Law has also been studied from various lenses
such as economics, sociology, etc. One common binding point is that they all converge on the fact that law
is a reflection of society and its practices and beliefs. The law is reason, free from passion. The purpose of
law in society is to preserve the moral sanctity that binds the society. Injustice anywhere is a threat to
justice everywhere. Therefore, the legal profession is considered a noble profession as it is the upholder
and protector of law. Each time a legal professional stands up for an ideal or acts to improve the lot of
others or strikes out against injustice, he sends forth a tiny ripple of hope. The legal profession aims to
serve society. Lawyers are considered to be social engineers, who bring about social change and
development.
News item dated 17/07/2021: The Kanwar Yatra won't be taking place this year after the Kanwar Sangh
today called off the Kanwar Yatra in Uttar Pradesh after holding consultations with the Uttar Pradesh
Government. This comes a day after the Supreme Court said in categorical terms that the State of Uttar
Pradesh cannot go ahead with its decision to allow the Kanwar Yatra in the State amid the COVID-19
pandemic. A bench headed by Justice RF Nariman asked the State of Uttar Pradesh to reconsider its
decision to allow physical yatras and get back to the Court on Monday.
"Either we will pass orders directly, or will give you one more opportunity to reconsider your decision",
Justice Nariman orally told Senior Advocate CS Vaidyanathan, who was appearing for the State of Uttar
Pradesh. A bench comprising Justice RF Nariman and BR Gavai was hearing the suo moto case taken on
the decision of the Uttar Pradesh Government to allow Kanwar Yatra amid the COVID pandemic. When
the matter was taken, Solicitor General for India Tushar Mehta told the bench that the stand of the Union
of India is that the yatra should not be allowed.
"Mr Vaidyanathan, there is one thing. Either we pass the orders directly or give you one more opportunity
to reconsider holding yatra physically. The pandemic affects all of us. We are all citizens of India. This suo
moto case is taken because Article 21 applies to all of us. It is to safeguard all of us”.
Article 21
No person shall be deprived of his life or personal liberty except according to procedure established by
law, nor shall any person be denied equality before the law or the equal protection of the laws within the
territory of India.
News item dated 25/07/2021:

"Right To Question Govt Is The Essence Of Democracy, Sedition Law Should Be Shown The Door
As Soon As Possible": Justice Deepak Gupta
"The time has come that section 124A (of the IPC; on sedition) be held as unconstitutional", said Justice
Deepak Gupta on Saturday.
Section 124A in The Indian Penal Code, Sedition.—Whoever, by words, either spoken or written, or by
signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards, 102 [***] the Government established by law
in 103 [India], [***] shall be punished with 104 [imprisonment for life], to which fine may be added, or
with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation
1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—
Comments expressing disapprobation of the measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the
administrative or other action of the Government without exciting or attempting to excite hatred, contempt
or disaffection, do not constitute an offence under this section.

Sanction U/S 197 CrPC Required To Prosecute Public Servants If Alleged Act Committed Is Directly
Concerned With Official Duty: Supreme Court
The court observed thus while dismissing an appeal against a Rajasthan High Court judgment which
allowed a petition filed by a accused - public servant under Section 482 of the CrPC and held that sanction
under Section 197 CrPC was necessary.
Section 197 in The Code Of Criminal Procedure, 1973, Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office
save by or with the sanction of the Government is accused of any offence alleged to have been committed
by him while acting or purporting to act in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the
alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided
that where the alleged offence was committed by a person referred to in clause (b) during the period while
a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b)
will apply as if for the expression" State Government" occurring therein, the expression" Central
Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the
Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except
with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to
such class or category of the members of the Forces charged with the maintenance of public order as may
be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will
apply as if for the expression" Central Government" occurring therein, the expression" State Government"
were substituted.
(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any
offence, alleged to have been committed by any member of the Forces charged with the maintenance of
public order in a State while acting or purporting to act in the discharge of his official duty during the
period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein,
except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby
declared that any sanction accorded by the State Government or any cognizance taken by a court upon
such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 ,
receives the assent of the President, with respect to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the
State, shall be invalid and it shall be competent for the Central Government in such matter to accord
sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by
whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis-
trate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Section 482 in The Code Of Criminal Procedure, 1973, Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process
of any Court or otherwise to secure the ends of justice.
News item dated 28/07/2021: BREAKING: SEBI Imposes Rs 3 Lakh Penalty On Raj Kundra, Shilpa
Shetty, Viaan Industries For Violating Insider Trading Norms
The Securities and Exchange Board of India has imposed a penalty of Rs 3 lakhs on Viaan Industries and
its promoters Shilpa Shetty and her husband Raj Kundra for violating SEBI (Prohibition of Insider
Trading or PIT Regulations) Regulations, 2015.
The order was passed based on an investigation into the tradings of the company listed in Bombay Stock
Exchange during the period 2013- 2015.
On October 29, 2015, VIL made a preferential allotment of 5,00,000 equity shares to four persons and in
the said preferential allotment 1,28,800 shares each were allotted to Shilpa Shetty and Raj Kundra. In this
regard, pursuant to the allotment of the shares through the preferential allotment, both of them were
required to make the necessary disclosure to the company in terms of the provisions of Regulation 7(2) (a)
of the PIT Regulations, as the relevant transactions in question through the aforementioned preferential
allotment exceeded Rupees Ten Lakh in value. Further, in terms of Regulation 7 (2) (b) of the PIT
Regulations, the Company was required to make the necessary disclosures to the stock exchange within
two trading days of the receipt of the disclosures from Shetty and Kundra. During the course of
investigation, the market regulator observed that the Shetty and Kundra had failed to make the relevant
disclosures required under Regulations 7 (2) (a) and 7 (2) (b) of the PIT Regulations within the stipulated
time period.
They made the relevant disclosures under the month of May, 2019 i.e. with a delay of more than three
years.
"It is on record that the relevant disclosures under the PIT Regulations were made by the Noticees with a
delay of more than three years," SEBI noted. "Therefore, considering these facts and circumstances, I hold
that this case deserves imposition of monetary penalty upon the Noticees," said adjudicating officer Suresh
B Menon in an order.
The SEBI said that timely disclosures to the Company/stock exchange are of significant importance from
the point of view of the investors and regulators.
News item dated 23/07/2021: Businessman Raj Kundra, the husband of actor Shilpa Shetty, has been
remanded in police custody till July 27. Kundra was arrested on July 19 and booked under sections 354(C)
(Voyeurism), 292 (sale of obscene content), 420(cheating) of the IPC and Sections 67, 67A (transmission
of sexually explicit material) of the IT Act and the Indecent Representation of Women (Prohibition) Act.
In his petition under Article 227 of the Constitution, Kundra has sought to quash the Chief Metropolitan
Magistrate's order on July 20, and all subsequent orders remanding him in custody. His petition was
partially heard today and his adjourned to Saturday.
Section 354 in The Indian Penal Code, Assault or criminal force to woman with intent to outrage her
modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.
Section 354A defines “sexual harassment” and punishment for sexual harassment
According to section 354A of Indian penal code,

1. A man committing any of the following acts?
1. physical contact and advances involving unwelcome and explicit sexual overtures; or
2. a demand or request for sexual favours; or
3. showing pornography against the will of a woman; or
4. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2. Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-
section (1) shall be punished with rigorous imprisonment for a term which may extend to three
years, or with fine, or with both.
3. Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished
with imprisonment of either description for a term which may extend to one year, or with fine, or
with both.
Under 354A (1), sexual harassment is a cognizable offense, non-bailable and carries punishment extending
to five years with fine or both.
Section 354B states, “Whoever assaults or uses criminal force to any woman or abets such act with
the intention of disrobing or compelling her to be naked in any public place, shall be punished with
imprisonment of either description for a term which shall not be less than three years but which
may extend to seven years and with fine.”
Section 354C defines voyeurism and stalking. Defining voyeurism, it says: “Whoever watches, or
captures the image of a woman engaging in a private act in circumstances where she would usually have
the expectation of not being observed either by the perpetrator or by any other person at the behest of the
perpetrator shall be punished …”
Also, Section 375 was altered and the word “rape” was substituted by “sexual assault”. It implies that acts
of sexual nature other than rape will also now be a criminal offense. Forcing a person to commit a sexual
act on oneself or on any other person is now illegal. The age of consent has been increased from 16 to 18
years.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom
she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is
given because she believes that he is another man to whom she is or believes herself to be law fully
married.
(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to which she
gives consent.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of
age, is not rape.] STATE AMENDMENT
(b) in the Exception, for the word “fifteen” substitute the word “thirteen”. [Vide Act 30 of 1950, sec. 3
(w.e.f. 16-4-1950) (made earlier than Act 43 of 1983)]. COMMENTS Absence of injury on male organ of
accused Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding
vagina depicts same, minor contradictions in her statements they are not of much value, also absence of
any injury on male organ of accused is no valid ground for innocence of accused, conviction under section
375 I.P.C. proper; Mohd. Zuber Noor Mohammed Changwadia v. State of Gujarat, 1999 Cr LJ 3419 (Guj).
Penetration Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case;
Prithi Chand v. State of Himachal Pradesh, (1989) Cr LJ 841: AIR 1989 SC 702.
News item dated 31/07/2021: Defendant Present Before Issuing Summons Or Without Filing Caveat Can
Be Heard On Rejection Of Plaint : Delhi High Court
The Delhi High Court has held that there is no bar in hearing a defendant, who is neither served summons
nor appearing on caveat, at the pre-summons stage in a suit on the points for rejection of plaint under
Order VII Rule 11 of the Code of Civil Procedure.
Since the Court is empowered to examine the grounds for rejection of plaint under Order VII Rule 11 at
the pre-summons stage, it can hear a defendant who is physically present in the court even though no
summons has been served on him or he has not filed caveat under Section 148A CPC.
Caveat petition is filed under Section 148 of the Civil procedure Code. Caveat generally means “a warning
or caution, beware”. It is a popular term which is used in Law to point out that there could be a hidden
problem to warn someone. In Law, it is understood as formal notice or warning given by an interested
party to a court, judge, or ministerial officer in opposition to certain acts within his or her power and
jurisdiction. The Court basically explains Caveat as a caution or warning given by a person to the court
that the court should not pass any judgement, ex-parte order/order before giving prior notice or without
hearing the person who can be called a caveator.
Interpreting Section 148A of CPC, Justice C Hari Shankar observed thus: "... this provision, in my
view, cannot, expressly or by necessary implication, deny the defendant a right of audience, to urge
objections under Order VII Rule 11 even prior to the issuance of summons in a suit."
Without going into the intricacies of the provision, it is clear that this petition, too, does not deny the
defendant the right of audience, if the defendant is present and seeks to urge that the plaint should
be rejected under Order VII Rule 11 even before summons are issued."
Section 148 of the Civil Procedure Code mentions

[148 A. Right to lodge a caveat.— (1) Any person who is claiming the right to appear before the court may
file a caveat where an application is expected to be made or has been made, in a suit or proceeding
instituted, or about to be instituted, in a Court.
(2) The caveator (who lodged the caveat under subsection (1) shall issue a notice of the caveat on the
person who has filed an application or who is expected to make an application by registered post,
acknowledgement due.
(3) In case, a caveat has been lodged by the caveator, under sub-section (1), the court shall serve a notice to
the caveator of any application filed in any suit or proceeding.
(4) In case, a notice of any caveat has been served on the applicant, the applicant shall furnish a copy of
application along with its supporting to the caveator at his expense henceforth.
(5) The caveat filed by the caveator shall be valid for 90 days from the lodging of the caveat unless the
application referred to in sub-section (1) has been made before the expiry of the said period.]
The main ingredient, which explains how to file the caveat, in the section stated above are:
Who is the right person to file caveat?
A person who claims the right to be present before the court irrespective of the person being a party to the
suit or not. This is substantive in nature as even a third party to the suit but not a stranger to the suit can file
the caveat, if it has the right to appear before the court. The Court has opined in the matter of Kattil
Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma that a complete stranger to the suit or
proceedings cannot file the petition of Caveat.
A person who claims the right to appear before the court in the case, any application is expected/has been
made before the court.
In any of the suits or proceedings which has been/about to be instituted before the Court, a person claiming
the right to appear can file the Caveat.
It is important for a person who lodged the caveat to serve the notice on the person against whom the
application has been made.
The court shall be serving a notice to the Caveator regarding the application. This is a Mandatory clause in
nature
The applicant shall serve the copy of the application, copies of any paper, documents etc to the Caveator at
his expense, in case notice is served upon the applicant by the court. It is a directive clause in nature.
The Caveat which has been lodged by the Caveator shall remain in force for 90 days, however, in case the
application has already been filed or already exist before the expiry of 90 days, then this clause shall not be
effective.
Where can a Caveator lodge the Caveat?
Whenever a person foresees that any legal suit or proceedings are going to be filed against him, he can
lodge a caveat petition in any of the civil courts including small court, tribunals etc. subject to it having
original jurisdiction or any of the appellate court. It is important to note that Section 148A of CPC applies
only to the civil proceedings, it cannot be applied for criminal proceedings or any of the petitions filed
under article 226 of the Constitution of India as explained by the Court in the case of Deepak Khosla v.
Union of India & Ors.
In the above-mentioned case, the petitioner filed a complaint against certain persons claiming that those
persons had committed the offence u/s 120B, 409, 477A under Indian Penal Code. However, the
Investigation Officer submitted a cancellation report after finding no offence against those persons.
Petitioner filed the case before the Additional Chief Metropolitan Magistrate. ACMM, after finding prima
facie offence, did not accept the cancellation report. Further ACMM, directed to summon the accused
person u/s 204 of CrPC.
Petitioner was happy. However, he was afraid that accused persons who were summoned by ACMM may
file the petition u/s 482 of CrPC or Article 227 of the Constitution of India and may seek and get the ex-
parte interim order. Hence, the petitioner wants to put Caveat on them. Therefore, petitioner lodged a
Caveat Petition u/s 148A read with sec 151 of CPC mentioning that any such petition by accused shall not
be listed by Court without giving 5 days’ notice to Caveator and no ex – parte order shall be passed
without giving notice to the petitioner which was challenged by registry mentioning that the Caveat
petition filed in CPC cannot be entertained in the criminal proceedings. Accordingly, the petition was
dismissed in absence of any provision for Caveat in Cr.P.C.
What if the Court or Applicant does not give notice to Caveator?
It is important to note that in case, Court or the applicant does not give the notice to the Caveator who has
filed the Caveat petition, the order or decree which has been passed without giving the notice becomes null
and void.
News item dated 03/08/2021: Delhi Court Issues Notice To Bollywood Singer & Actor Honey Singh
In Domestic Violence Case By Wife.
A Delhi Court on Tuesday issued notice to Bollywood Singer and Actor Honey Singh in a domestic
violence case filed against him by his wife, Shalini Talwar.
While seeking response of the singer, Chief Metropolitan Magistrate Tania Singh also passed interim
orders restraining him from disposing off his jointly owned property, stridhan owned by his wife etc.
The applicant wife has approached the Court under sec. 12 of the Protection of Women from Domestic
Violence Act, 2005 alleging that Singh and his family members were brash and violent towards her and
that Singh has a history of criminal intimidation, hurt, brutal violence towards people who do not give into
his demands.
The Respondent No. 1 showed no shame in attacking, browbeating (to frighten or threaten somebody in
order to make him/her do something), manhandling, cheating, being disloyal and causing irreparable harm
to the woman he was supposed to cherish and protect." The plea reads further.
Section 12 in The Protection of Women from Domestic Violence Act, 2005, Application to
Magistrate.—
(1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may
present an application to the Magistrate seeking one or more reliefs under this Act: Provided that before
passing any order on such application, the Magistrate shall take into consideration any domestic incident
report received by him from the Protection Officer or the service provider.
(2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of such person to institute a suit for compensation
or damages for the injuries caused by the acts of domestic violence committed by the respondent: Provided
that where a decree for any amount as compensation or damages has been passed by any court in favour of
the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate
under this Act shall be set off against the amount payable under such decree and the decree shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for
the time being in force, be executable for the balance amount, if any, left after s uch set off.
(3) Every application under sub-section (1) shall be in such form and contain such particulars as may be
prescribed or as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from
the date of receipt of the application by the court.
(5) The Magistrate shall endeavour to dispose of every application made under sub-section (1) within a
period of sixty days from the date of its first hearing.
The doctrine of severability means that when some particular provision of a statute offends or is against a
constitutional limitation, but that provision is severable from the rest of the statute, only that offending
provision will be declared void by the Court and not the entire statute.
News item dated 06/08/2021: Article 25 Does Not Provide Any Immunity From Taxation On The Basis
Of Religion, Salaries Of Nuns and Priests Working As Teachers Liable To TDS: Kerala High Court
The Kerala High Court recently ruled that salaries paid to nuns and priests of religious congregations,
working as teachers in educations institutions are liable for tax deduction at source while dismissing a
batch of nearly 50 writ appeals.
A Division Bench of Justice SV Bhatti and Justice Bechu Kurian Thomas upheld the rider of a Single
Bench and observed that such deduction of tax does not violate freedom of religion under Article 25 of the
Constitution.
Article 25 in The Constitution Of India 1949, Freedom of conscience and free profession, practice
and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making
any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause
reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
Article 25 does not provide any immunity from taxation on the basis of religion". "If a valid law
permits deduction of tax at source, we find ourselves at a loss to assimilate the scope of the contention that
deduction of tax at source violates the fundamental right to freedom of religion," the Court remarked.
From 1944, the salary paid to the nuns or priests by the government or aided institutions was not subjected
to TDS. However, this changed in 2014, when the Income Tax Officers directed District Treasury Officers
that TDS must be effected even for employees who are members of religious congregations receiving
salary from the government exchequer.
The judgment made it clear, Non-deduction of TDS for more than 76 years does not Confer a Right
against such Deduction.
News item dated 06/08/2021: Controversial 'Skin-to-Skin' Judgment In POCSO Case : Supreme Court
Posts Attorney General's Appeal For Final Hearing On August 24
The Supreme Court on Friday posted the appeal filed by the Attorney General for India against the
controversial judgment passed by the Bombay High Court (Nagpur Bench) in a POCSO case for final
hearing on August 24.
A bench comprising Justices UU Lalit and Ajay Rastogi also appointed Senior Advocate Siddhartha
Dave as an amicus curiae (an impartial adviser to a court of law in a particular case; also called the
friend of the court) in the matter.
OIt may be recalled, on 24/01/2021, the Nagpur Bench of the Bombay High Court has held that
groping a child's breasts without 'skin-to-skin contact' would amount to molestation under the
Indian Penal Code but not the graver offence of 'sexual assault' under the Protection of Children
from Sexual Offenses (POCSO) Act. A single bench of Justice Pushpa Ganediwala made the
observation while modifying the order a sessions...
The judgment created huge furore, attracting widespread condemnation and criticism. The Attorney
General for India mentioned the matter before the Chief Justice of India, saying that the judgment sets a
dangerous precedent.
On January 27, a bench led by the then CJI SA Bobde stayed the operation of the judgment to the extent of
acquittal under Section 8 of POCSO.
Later, the State of Maharashtra and National Commission for Women also filed appeals against the
judgment.
The Single bench of Justice Pushpa Ganediwala passed the impugned judgment while modifying the order
of the Sessions Court which held a 39-year-old man guilty of sexual assault for groping a 12- year- old-
girl and removing her salwar.
In paragraph no. 26 of the impugned order, the Single Judge had held that "there is no direct physical
contact i.e. skin to skin with sexual intent without penetration".
impugn: dispute the truth, validity, or honesty of (a statement or motive); call into question. For
example: "the father does not impugn her capacity as a good mother"
News item dated 08/08/2021: Mens Rea As Intent Not Required In Medical Negligence Cases:
Supreme Court
The Supreme Court observed that mens rea as intent is not required in a case of medical negligence. The
bench of Justices AM Khanwilkar and Sanjiv Khanna observed that before summoning the accused in a
criminal medical negligence complaint, the complainant has to lead medical evidence or examine a
professional Doctor by the complainant in support of his case made out in the complaint.
In this case, the complainant filed a medical negligence complaint under Section 304, 316/34 of the Indian
Penal Code. The Magistrate issued summons to the accused. Challenging the summons order, the accused
approached the High Court which then quashed it on the ground that there was no evidence regarding mens
rea, to show malicious or bad intent.
In appeal, the bench of Justices observed that this view of the High Court is erroneous. “For, when it
is a case of medical negligence, it need not be because of mens rea as intent. Sans mens rea in the
above sense also it would still constitute offence of medical negligence.”, the Court said.
Section 304 in The Indian Penal Code, Punishment for culpable homicide not amounting to murder.
—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment
for life], or imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to
cause death.
Section 304A in The Indian Penal Code, Causing death by negligence.—Whoever causes the death of
any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or with both.]
Section 316 in The Indian Penal Code, Causing death of quick unborn child by act amounting to
culpable homicide.—Whoever does any act under such circumstances, that if he thereby caused death he
would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall
be punished with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine. Illustration A, knowing that he is likely to cause the death of a pregnant woman, does
an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is
injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby
caused. A is guilty of the offence defined in this section. CLASSIFICATION OF OFFENCE Punishment
—Imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-
compoundable.
Section 34 in The Indian Penal Code, Acts done by several persons in furtherance of common
intention.—When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.
News item dated 06/08/2021: Pegasus Spyware Scandal: Laws on Surveillance and Phone-Tapping -
The controversy surrounds the utilisation of Pegasus spyware by the government to snoop on eminent
persons from different walks of life.
Pegasus Project: How Phones of Journalists, Ministers, Activists May Have Been Used to Spy On
Them
An international collaborative reporting project has established the frightening extent to which
governments around the world, including India, could be using surveillance tools in ways that have nothing
to do with national security.
A leaked database of thousands of telephone numbers believed to have been listed by multiple government
clients of an Israeli surveillance technology firm includes over 300 verified Indian mobile telephone
numbers, including those used by ministers, opposition leaders, journalists, the legal community,
businessmen, government officials, scientists, rights activists and others, according to an investigation
by The Wire and 16 media partners.
Forensic tests conducted as part of this project on a small cross-section of phones associated with these
numbers revealed clear signs of targeting by Pegasus spyware in 37 phones, of which 10 are Indian.
Without subjecting a phone to this technical analysis, it is not possible to conclusively state whether it
witnessed an attack attempt or was successfully compromised.
NSO Group, the Israeli company which sells Pegasus worldwide, says its clients, are confined to “vetted
governments”, believed to number 36. Though it refuses to identify its customers, this claim rules out the
possibility that any private entity in India or abroad is responsible for the infections which The Wire and
its partners have confirmed.
The leaked database was accessed by Paris-based media nonprofit Forbidden Stories and Amnesty
International and shared with The Wire, Le Monde, The Guardian, Washington Post Die Zeit, Suddeutsche
Zeitung and 10 other Mexican, Arab and European news organisations as part of a collaborative
investigation called the ‘Pegasus Project’.
A majority of the numbers identified in the list were geographically concentrated in 10 country clusters:
India, Azerbaijan, Bahrain, Hungary, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia and the
United Arab Emirates.
Each of these countries have been identified in the past by experts at Citizen Lab – a digital surveillance
research organisation based out of the University of Toronto that laid the groundwork for WhatsApp’s
2019 lawsuit against the NSO Group – as having been a region of focus for Pegasus operators.
Working together with the technical lab of Amnesty International, a team of over 80 journalists
coordinated by Forbidden Stories sought to identify and verify the individuals to whom these numbers
belong and then conduct a forensic examination of the phones in use by them for the period covered by the
data, which, in the Indian case was approximately mid-2017 to mid-2019.
The Indian Telegraph Act and Information Technology Act prescribe procedures that must be followed for
lawful interception. Different countries have different laws but the use of hacking to deliver surveillance
spyware in India by any individual, private or official, is an offence under the IT Act.
Section 5 of the Telegraph Act, commonly known as wire-tapping clause, gives authority to any
authorized public official to intercept communications in the situation of any public emergency or in the
interest of public safety. However, such interception has to satisfy the following ground: (i) sovereignty
and integrity of India; (ii) the security of the State; (iii) friendly relations with foreign states; (iv) public
order; or (v) preventing the incitement to the commission of an offence. It is interesting to note that the
proviso to Section 5 puts further restriction on the interception of the 'press messages' of the journalists
who are 'accredited to the Union government or state government'.
Res judicata is a matter that has been adjudicated by a competent court and therefore may not
be pursued further by the same parties.
adjudication : a formal judgement on a disputed matter. For example: "an adjudication
had found a degree of unwarranted infringement of privacy"
What is the difference between res judicata and estoppel?

Authoritatively, res judicata is a bar on the jurisdiction of a court, and is a basic test to institute a
suit whereas, as mentioned before, estoppel is only a doctrine observed in evidence and
disables the parties to speak further.
Adjudicated is to make a formal judgement on a disputed matter. Adjudication refers to the

legal process of resolving a dispute or deciding a case. When a claim is brought, courts identify
the rights of the parties at that particular moment by analyzing what were, in law, the rights and
wrongs of their actions when they occurred. How the word is used in a sentence – for example
"the Committee adjudicates on all betting disputes"
Return of Plaint (an accusation or charge) simply mean that the Court is not empowered to
entertain the suit for which the plaint has been filed. On such circumstances, the plaint is
rejected if the necessary requirements of a plaint does not meet its aspect or if the certain
provisions are vague and ambiguous.
Order 6 Rule 1 of THE CODE OF CIVIL PROCEDURE, 1908 defines Pleading as “a plaint or a
written statement”. It means that a plaint is the pleading filed on behalf of the victim i.e plaintiff.
Parties are normally expected to confine to pleadings. Pleadings are liberally constructed.
This week in news:

Improper To Quash FIR U/s 482 CrPC When There Are Serious Triable Allegations In Complaint,
Reiterates Supreme Court. The Supreme Court observed that it is improper to quash criminal
proceedings under Section 482 of Criminal Procedure Code when there are serious triable allegations in
the complaint.
Section 482 in The Code Of Criminal Procedure, 1973, Saving of inherent powers of High
Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of justice.
Appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers
under Section 482 CrPC, the Supreme Court reiterated while setting aside a High Court judgment. In this
case, pursuant to direction of Magistrate under Section 156(3) CrPC, the police registered FIR against the
accused under Sections 147, 148, 149, 406, 329 and 386 IPC. The complaint pertained to non-execution of
a sale deed. The accused approached the High Court seeking quashing of FIR and entire criminal
proceedings alleging that the same has been lodged only with a view to pressurize the accused handover
the plot to the complainant. The High Court allowed the petition.
In appeal, the appellant-complainant contended that the High Court has entered into the merits of the
allegations at the stage of quashing proceedings under Section 482 Cr.P.C.
The court reiterated that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an
exception and not a rule and the inherent jurisdiction under Section 482 Cr.P.C. though wide is to be
exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically
laid down in section itself. Appreciation of evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482 Cr.P.C, the court added.
Taking note of the facts alleged in the complaint and FIR, the bench observed that all triable
issues/allegations which are required to be considered at the time of trial. The High Court has grossly erred
in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting the trial, the bench said while setting aside the High
court judgment.
Section 147 in The Indian Penal Code, Punishment for rioting.—Whoever is guilty of rioting, shall be
punished with imprisonment of either description for a term which may extend to two years, or with fine,
or with both.
Section 148 in The Indian Penal Code, Rioting, armed with deadly weapon.—Whoever is guilty of
rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely
to cause death, shall be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
Section 149 in The Indian Penal Code, Every member of unlawful assembly guilty of offence
committed in prosecution of common object.—If an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that assembly, or such as the members of that
assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of
the committing of that offence, is a member of the same assembly, is guilty of that offence.
Section 329 in The Indian Penal Code, Voluntarily causing grievous hurt to extort property, or to
constrain to an illegal act.—Whoever voluntarily causes grievous hurt for the purpose of extorting from
the sufferer or from any person interested in the sufferer any property or valuable secu rity, or of
constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which
may facilitate the commission of an offence, shall be punished with 1[imprisonment for life], or
imprisonment of either description for a term which may extend to ten years, and shall also be liable to
fine.
Section 386 in The Indian Penal Code, Extortion by putting a person in fear of death or grievous
hurt.—Whoever commits extortion by putting any person in fear of death or of grievous hurt o that person
or to any other, shall be punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.
Section 406 in The Indian Penal Code, Punishment for criminal breach of trust.—Whoever commits
criminal breach of trust shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.

Mens Rea As Intent Not Required In Medical Negligence Cases: Supreme Court
Before summoning the accused in a criminal medical negligence complaint, the complainant has to lead
medical evidence or examine a professional Doctor by the complainant in support of his case made out in
the complaint.
In this case, the complainant filed a medical negligence complaint under Section 304, 316/34 of the Indian
Penal Code. The Magistrate issued summons to the accused. Challenging the summons order, the accused
approached the High Court which then quashed it on the ground that there was no evidence regarding mens
rea, to show malicious or bad intent.
In appeal, the bench of Justices observed that this view of the High Court is erroneous. " For, when it is a
case of medical negligence, it need not be because of mens rea as intent. Sans mens rea in the above sense
also it would still constitute offence of medical negligence.", the Court said.

Supreme Court Bars Withdrawal Of Criminal Prosecution Against MPs/MLAs Without Permission
Of High Court
The Supreme Court on Monday directed that no prosecution against sitting of former MPs and MLAs will
be withdrawn without the permission of the High Court of the concerned state. The Court further directed
that judges hearing the criminal cases against MPs/MLAs in Special Courts should continue in their
current posts until further orders of the Supreme Court. This direction will be subject to the retirement or
death of the judges holding the trial of cases against legislators.
A Bench comprising the Chief Justice of India NV Ramana, Justice Vineet Saran and Justice Surya Kant
issued the direction while hearing the plea filed regarding pendency of criminal cases against MPs and
MLAs and expeditious disposal of the same by setting up of Special Courts. "The first issue is about
misuse of power under Section 321 of the Code of Criminal Procedure regarding withdrawal of cases. We
find it appropriate to direct that no prosecution against MPs, MLAs to be withdrawn without leave of High
Court in the respective suo motu cases registered in pursuance to our order", the bench ordered.
“To ensure disposal of pending cases, it's necessary for this court to direct presiding officers of special
courts, or CBI courts involved in the prosecution of MPs, MLAs to continue in their present post until
further orders. Such a direction of this court barring the judicial officers will be subject to their retirement
or death", the bench added.
Section 321 in The Code Of Criminal Procedure, 1973, Withdrawal from prosecution. The Public
Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any
time before the judgment is pronounced, withdraw from the prosecution of any person either generally or
in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence
or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be
acquitted in respect of such offence or offences: Provided that where such offence-
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central
Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act
in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the
Central Government, he shall not, unless he hag been permitted by the Central Government to do so, move
the Court for its consent to withdraw from the prosecution and the Court shall, before according consent,
direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw
from the prosecution.
News item dated 18/08/2021: A Delhi Court on Wednesday discharged Congress MP Dr Shashi Tharoor
in Sunanda Pushkar death case.
The prosecution had pressed the charges of abetment to suicide and cruelty under sec. 306 and 498A of the
Indian Penal Code and alternatively for murder under sec. 302 of the Indian Penal Code.
Section 306 in The Indian Penal Code, Abetment of suicide.—If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Section 498A in The Indian Penal Code, Husband or relative of husband of a woman subjecting her
to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also
be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
Section 302 in The Indian Penal Code, Punishment for murder.—Whoever commits murder shall be
punished with death, or 1[imprisonment for life], and shall also be liable to fine.
News item dated 26/08/2021: We Have Lost All Faith In Tihar Jail Authorities! They Are Sitting in
Capital City & Defeating Our Orders, Absolutely Shameless": Supreme Court In Unitech Case
The bench of Justices Chandrachud and M. R. Shah pulled up the Tihar Jail authorities for acting in
connivance with Ajay Chandra and Sanjay Chandra, the erstwhile promoters of Unitech Ltd., in engaging
in illegal activities by flouting the jail manual, dissipating proceedings, derailing investigation etc. The
bench made these comments in pursuance of the revelations made by ASG Madhavi Diwan, for the ED, on
how the Chandra brothers are operating from Jail- that the ED has found a secret underground office of
theirs in South Delhi, that hundreds of original property sale deeds, digital signatures and computers with
sensitive information have been seized from the secret office, and that they deputed staff outside the Tihar
jail premises to communicate with outside world and dispose off properties. It has also been alleged that
they even tried to influence from jail a dummy director interrogated by the agency.
The Tihar Jail authorities have acted absolutely in connivance with them! The jail has virtually become a
haven for carrying out unlawful activities for defeating the order of the Supreme Court! We have lost faith
in the Tihar jail authorities! They are sitting in the capital city and enforcing the orders of the Supreme
Court and all this is happening under their nose?! Absolutely shameless of the Superintendent of the Tihar
Jail, is all we want to say! We are proposing to pass an order today shifting Ajay and Sanjay Chandra
elsewhere!", observed Justice Chandrachud.
Once we have revoked your facilities, you are only entitled to as much as the other undertrials! Clearly,
some people are more equal than others! This is defeating the jurisdiction of our Court and the
investigation by the ED!", commented the judge to Senior Advocate Vikas Singh, for the accused.
The bench on Thursday shifted the Chandra brothers to Arthur Road Jail, Mumbai and Taloja Jail, to be
housed separately- "We are of the view that the record thus far indicates that despite the orders of this
court, activities are taking place within the precincts of the Tihar Central Jail where the 2 accused have
been lodged which has the propensity to undermine the authority of the court as also to derail the
investigation which has been ordered been ordered by the Enforcement Directorate, including but not
confined to the PMLA. In the circumstances, we order and direct that the accused be shifted immediately
from Tihar Central Jail to the premises of Arthur Road Jail, Mumbai and to the Taloja Central Jail, to be
housed separately. A copy of this communication shall be forwarded by the Registrar Judicial to the DGP,
Maharashtra so that arrangements can be made immediately for housing the 2 accused."
It was Commissioner's duty as head of department to inquire into allegations! He should not have waited
even a single day!" The court also asked why the Commissioner, Delhi Police has not taken any action for
10 days despite the communication by the ED to him making certain allegations against the jail staff. The
bench directed the Commissioner to personally carry out an inquiry into the same and submit a report
within 4 weeks. "What is happening in Tihar Jail?", Justice Chandrachud put to ASG K. M. Nataraj, for the
Delhi Police. "The contents of the letter (addressed by the ED to the Commissioner) are serious! We will
hold an inquiry and place the report before the court. We will not shield anyone in this matter", replied the
ASG. But the Commissioner should have immediately started the inquiry!", observed Justice Shah. "Yes.
The letter is of August 16. Today, we are on August 26. What has happened in 10 days?!", asked Justice
Chandrachud.
The Success Story
IITian(Kharagpur) Ramesh Chandra set up Unitech in 1971 with the aim of offering buyers all that was
premium. Even today, you have to shell out crores of rupees for a resale unit in any of its
completed projects in Chennai, Noida, Greater Noida, Gurgaon, Kolkata, Lucknow or Mohali.
A golden period for Unitech came in 2007-08, when the company was valued at Rs 1.43 lakh crore. It
made a net profit of Rs 1,669 crore on a total revenue of Rs 4,280 crore. Its stock hit an all-time high of Rs
547 in January 2008. Amid the real estate boom of the time, the Unitech group, credited with building
popular malls like Noida's The Great India Place, Delhi's Rohini Metro Walk and Gurgaon's The Couture
and Gurgaon Central, went on to create a land bank of over 14,000 acres.
The mercurial rise of the group in those years could be gauged from the fact Ramesh Chandra and sons
Sanjay and Ajay, with a net worth of Rs 30,000 crore, were ranked the seventh-richest in the Business
Standard Billionaire Club, 2007.
Betting on its growth potential, Unitech made Millennium City Gurgaon its happy hunting ground, and set
up the highest number of its residential projects here. Eight of its “sold-out” projects, 18 “completed
projects” and 12 “current” projects are based in Gurgaon, informs the company website. Each unit in these
projects is worth over Rs 1 crore.
When an economic slowdown hit the world in late 2008, India's real estate sector also took a blow. Among
India's realty hotspots of the time, Gurgaon was one of the biggest casualties, show data available with
PropTiger.com. By 2009, the depression facing the sector had capped the growth prospects of the country's
major real estate players, including Unitech.
While trying to recover from the real estate turmoil, a successful venture in an unrelated field might have
proved greener pastures. In March 2009, it closed its deal with Norway's Telenor to set up a joint venture
telecom services company, Uninor, for the India market. But that venture hardly took off and,in fact, added
to the pains.
Another jolt shook the group two years later, when Managing Director Sanjay Chandra was arrested in
2011 over his alleged involvement in the Rs 1.85 lakh-crore 2G spectrum scam and Uninor's licence was
cancelled. A high-profile corporate divorce of Unitech and Telenor followed, and it was widely covered by
the media through 2011 and 2012.
Things came to such a pass by 2016 that the Chandras had to go without salaries for several months, show
company records. Today, the company is sitting on a debt of Rs 6,700 crore.
At close of BSE trading on December 15 this year, Unitech's shares were priced at Rs 6.6 apiece – what a
fall from an all-time high of Rs 547! – and the listed company had a market value of Rs 1,725.66 crore.
Today, the jailed MD is finding it hard to arrange even the bail money for his release from jail.
After the Delhi High Court rejected his bail plea in October this year, Sanjay Chandra moved the SC,
challenging the order. The apex court has set a condition that Chandra would get a bail only if he was able
to deposit Rs 750 crore by the end of December 2017. Chandra and his company have not been able to do
so.
In January last year, Sanjay told the SC he had not been able to arrange the bail money crore because
"buyers do not want to come to jail to meet me". "I have to recover money. These are amounts which I
cannot recover because I am in jail. The court may consider granting custody parole for eight weeks," he
said.
Following this, the SC on in November directed the Tihar Jail authorities to facilitate Chandra's meeting
with his company officials and lawyers so that he could arrange the money, to be used for refunding
homebuyers and completing the ongoing housing projects.
Arranging the sum through parleys with his trusted men and investors proved an uphill task for the
Chandras, who, until less than a decade ago, were seen as a rising star among the India Inc captains.
How The Story Has Unfolded In 2017
March 31: Sanjay Chandra, who had been out on bail in the 2G case, and brother Ajay were arrested by the
Economic Offences Wing of the Delhi Police for allegedly duping homebuyers in a Gurgaon project.
August 11: The Delhi High Court rejected Sanjay Chandra's bail plea in a criminal case lodged in 2015 by
158 homebuyers who had purchased flats in two of Unitech's Gurgaon projects, Wild Flower Country and
Anthea Project.
October 20: Chandra was asked by the Supreme Court to deposit Rs 750 crore with it by December-end as
a precondition for granting bail.
November 20: The SC directed Tihar jail authorities to facilitate Chandra's meeting with his company
officials and lawyers to enable him to arrange money for refunding homebuyers and completing the
ongoing housing projects.
December 8: The National Company Law Tribunal (NCLT) suspended all the eight directors of the
company over allegations of mismanagement and siphoning of funds, and authorised the Centre to appoint
10 nominees on the board. The NCLT order had come after the Centre moved the panel with a view to
protecting the interests of nearly 20,000 homebuyers.
December 13: The SC stayed the December 8 NCLT order allowing the Centre to take over the
management of the embattled Unitech group. It said the government should not have moved the NCLT
when the apex court was hearing the matter. The Court also said that no lower courts should take up any
coercive action against the company chief for now.
MOUNTING TROUBLE IN THE MEANTIME
October 21, 2019
The Noida Authority has cancelled the allotment of a group housing property to crisis-hit realtor Unitech
over non-payment of dues worth Rs 1,203 crore. The property concerned is located in Sector 113 where
the real estate group had also come up with 17 towers without getting the map cleared by the authority, in
violation of the Noida Building Regulation, 2010. Unitech was served a notice on August 24, 2019 and
multiple other notices prior to that, in which it was asked to clear the pending dues. The group is also
accused of trying to have an agreement to sell 19,181.50 sq metre of land to Sethi Residents and GMA
Developers, making them third-party, without seeking the authority's permission.
September 5, 2019
Offering major relief to 33 buyers, who have been waiting for their homes in Noida Sector 117-located
Uniworld project since 2012, the National Consumer Disputes Redressal Commission (NCDRC) has
directed Unitech to finish the work in nine months, and pay the hassled parties eight per cent compensation
for the delayed period. The apex consumer panel also directed Unitech to pay Rs 50,000 as litigation cost
to buyers.
August 26, 2019
NCDRC tells Unitech to refund over Rs 1 crore to buyers: The National Consumer Disputes Redressal
Commission (NCDRC) has asked Unitech to refund over Rs 1 crore to two buyers for failing to hand over
possession of an apartment even after a delay of almost six years.
The apex consumer panel asked the company to refund the amount within three months, deposited by D
Rameshbabu and Swaroop Nandakumar in Unitech's Gurugram project, 'The Exquisite' Nirvana Country 2.
It also directed Unitech to pay as compensation interest at 10 per cent per annum on the principal amount
and Rs 25,000 as litigation cost. Nandkumar and Rameshbabu had booked a residential flat with Unitech in
2010 which was to be delivered by October, 2013.
News item of 09/09/2021 (Thursday)
Man hit by actor Rajat Bedi’s car dies during treatment; police add section 304-A to FIR.
Bollywood actor Rajat Bedi had recently made headlines after his car hit a man in an accident.
The pedestrian involved in the car accident died during the treatment. Following the death of the
victim, the DN Nagar police have added section 304-A (Causing death by negligence) of the
Indian Penal Code in the FIR registered against the actor.
Section 304A in The Indian Penal Code, 304A. Causing death by negligence.—Whoever
causes the death of any person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.
Section 304 in The Indian Penal Code, Punishment for culpable homicide not amounting
to murder.—Whoever commits culpable homicide not amounting to murder shall be punished
with 1[imprisonment for life], or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is likely to cause death, but without any intention
to cause death, or to cause such bodily injury as is likely to cause death.
The accident took place on Monday evening near a temple in Andheri when the actor was on his
way home. According to reports, the victim Rajesh Baudh, a labourer, was declared dead in the
Cooper Hospital where he was being treated for the past two days.
As per reports, the victim was in an inebriated condition and suddenly came into the middle of
the road and got hit by Bedi’s car even before he could apply brakes. The actor admitted Baudh
to Cooper Hospital and also promised help to the victim’s family.
After the accident, the police had registered a case against the actor under Indian Penal Code
sections 279 (rash driving) and 338 (Causing grievous hurt by act endangering life or personal
safety of others).
Section 279 in The Indian Penal Code, Rash driving or riding on a public way.— Whoever
drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger
human life, or to be likely to cause hurt or injury to any other person, shall be punished with im -
prisonment of either description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.
Section 338 in The Indian Penal Code, Causing grievous hurt by act endangering life or
personal safety of others.—Whoever causes grievous hurt to any person by doing any act so
rashly or negligently as to endanger human life, or the personal safety of others, shall be
punished with imprisonment of either description for a term which may extend to two years, or
with fine which may extend to one thousand rupees, or with both.
News item dated 29/09/2021: “POCSO is a special law intended to protect children who are far more
vulnerable and that is why one cannot look at Section 354 of the IPC and say its similar in nature",
Advocate General KK Venugopal argued. The Supreme Court on Wednesday started hearing the plea by
Attorney General for India against the acquittal of an accused in terms of Bombay High Court judgment
which held that skin to skin contact is necessary to constitute sexual assault under Section 8 of the
POCSO Act. (Whoever, commits sexual assault, shall be punished with imprisonment of either
description for a term which shall not be less than three years but which may extend to five years,
and shall also be liable to fine.)
Section 7 of the POCSO Act says, Whoever, with sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any
other person, or does any other act with sexual intent which involves physical contact without
penetration is said to commit sexual assault.
Bombay High Court judgment : Pressing Breasts Without Disrobing Not "Sexual Assault" As Per
POCSO Act But Offence Under Sec 354 IPC : Bombay High Court
The Nagpur Bench of the Bombay High Court has held that groping a child's breasts without 'skin-
to-skin contact' would amount to molestation under the Indian Penal Code but not the graver
offence of 'sexual assault' under the Protection of Children from Sexual Offenses (POCSO) Act. A
single bench of Justice Pushpa Ganediwala made the observation while modifying the order a
sessions...
However, the Supreme Court felt that Bombay High Court decision was absurd and will destroy the
intent of the act.
News item dated 08/10/2021: Lakhimpur Kheri Violence : Supreme Court 'Not Satisfied' With UP
Police Probe; Asks 'Is This The Way You Treat Accused In Other Murder Cases ? By Sending
summons ?’
The Supreme Court on Friday recorded its dissatisfaction over the investigation done by the Uttar Pradesh
Police in the Lakhimpur Kheri violence, which claimed the lives of 8 people, four of them being farmers
protesters who were allegedly mowed down by the vehicles in the convoy of Ashish Mishra, the son of
Union Minister and BJP MP Ajay Kumar Mishra.
About the incident
On October 3, several farmers were holding protests against the visit of Uttar Pradesh Deputy Chief
Minister Keshav Prasad Maurya to Lakhimpur Kheri district, when four protesting farmers were killed
after they were mowed down by an SUV. Allegedly, the SUV was the part of the convoy of Union
Minister of State for Home Affairs and BJP MP Ajay Kumar Mishra. The police has filed a first
information report against Ashish Mishra (son of minister Ajay Kumar Mishra) and several others in
connection with the violence under Section 302 IPC. An alleged video of the incident has also surfaced in
social media showing a group of protesters moving forward on a road next to farm fields and then being
mowed down by a grey SUV that speeds up from behind. The Uttar Pradesh government has announced
that a retired High Court judge will probe the Lakhimpur Kheri violence and also, 45 lakh compensation
would be given to the families of the four farmers killed in the incident.
Complete court-room exchange
Senior Advocate Harish Salve appeared for the State of Uttar Pradesh today. He submitted that summons
were issued to Ashish Mishra to appear at 11 AM tomorrow, and if he does not appear, the rigour of law
will take its course. 'Is it the way you treat the accused in other cases as well? Sending notice?', the Chief
Justice of India said at the outset.Salve replied that the police said that the police stated that the post-
mortem report showed no bullet wounds and hence the notice under Section 160 CrPC was first served on
the accused.'We expect this to be a responsible government. When there is a serious allegations of murder
and gun shot injury..how the accused in other parts of the country are treated? Sending notice like please
come please tell us?', the CJI asked.Salve said that he had asked this to the police and he was told that the
post mortem report did not show any gun shot injury, though there was an allegation of firing.'Post-mortem
report not showing gun-shot injuries...is it a reason?...I don't want to say more', the CJI remarked.'It is a
serious matter', Salve said.'If it is serious, then the way it should've proceeded it has not proceeded is what
we feel. It appears its only in words & not in actions', the CJI said. 'They should have done the needful',
Salve said. 'Mr.Salve, as the saying goes, the proof of the pudding is in eating', Justice Kohli quipped.
'What is the message we are sending? In normal circumstances, if 302 case is registered what will police
do? Go and arrest the accused!', the CJI stated. 'And it is a case of brutal murder of 8 people. Law must
have taken its course against whoever is involved', Justice Surya Kant joined. Mr.Salve said that whatever
needs to be done will be done. The CJI also pointed out that all the members of the Special Investigation
Team of the UP Police are local officers. 'This is what happens when all the people are local people', CJI
said. 'Has the state made any request for CBI investigation?', the CJI asked .'The state has not...it is
completely in your lordships hands...may I suggest. Your lordship may keep it after vacations and in the
meantime the State will take steps', Salve replied. 'Mr.Salve, we have respect for you. We hope the state
will take necessary steps. Because of the sensitivity of the issue, we are not making any comments. And
CBI may not be a solution for reasons you better know....because of persons... Better some other mode you
find out, we'll take up immediately after vacation', the CJI said. Salve admitted that what 'they (UP Police)
have done is a hash' and should have done better to 'instill confidence'.
The bench dictated the following order :
'We've heard Sr Adv Harish Salve. The learned senior counsel explained the various steps taken filed by
State & status report was also filed. However we are not satisfied by steps taken by state. The learned
senior counsel has ensured that steps will be taken by next date, to satisfy this court and alternatives will be
considered to have investigation by another agencies. In that view, we're not inclined to go in detail, list
after vacation. Meanwhile, he has ensured that he will communicate to highest police officer in the state to
take steps to protect evidence and other materials".
News item dated 08/10/2021: Attorney General Refuses Consent To Initiate Contempt Proceedings
Against Chandra Shekhar Azad.
"The Attorney General for India KK Venugopal yesterday declined to grant consent to initiate criminal
contempt proceedings against the National President of Azad Samaj Party, Chandra Shekhar Azad for his
comments levelling allegations against the judges of the Supreme Court. The AG was considering a letter
forwarded by Delhi based lawyer Vineet Jindal requesting him to grant consent under Section 15(1)(b) of
the Contempt of Courts Act, 1971 to initiate contempt proceedings against Azad.
Section 15 in the Contempt of Courts Act, 1971, Cognizance of criminal contempt in other cases.—
(1) In the case of a criminal contempt, other than a contempt referred to in section 14, the Supreme Court
or the High Court may take action on its own motion or on a motion made by—
(a) the Advocate-General, or
(b) any other person, with the consent in writing to the Advocate-General, 3 [or]
3 [(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf, or any other person, with
the consent in writing of such Law Officer.]
(2) In the case of any criminal contempt of a subordinate court, the High Court may take action on a
reference made to it by the subordinate court or on a motion made by the Advocate-General or, in relation
to a Union territory, by such Law Officer as the Central Government may, by notification in the Official
Gazette, specify in this behalf.
(3) Every motion or reference made under this section shall specify the contempt of which the person
charged is alleged to be guilty. Explanation.—In this section, the expression “Advocate-General” means—
(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;
(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High
Court has been established;
(c) in relation to the Court of a Judicial Commissioner, such Law Officer as the Central Government may,
by notification in the Official Gazette, specify in this behalf.
Importantly, the letter sent by lawyer Jindal had alleged that as per Azad's statement, the selection to the
post of Judges is done solely on the basis of personal relations or family relations of the selected judges
with the sitting judges. The letter had further stated that Azad had alleged that the selection process is
totally biased and that it takes place in the interest of sitting judges and their family members. Referring to
Azad's statement made during an interview on ABP news channel, in its programme called 'ABP Shikhar
Sammelan' on 27th August 2021, the letter of Jindal had further stated thus:'...(he) directly made
allegations with intent to disgrace and scandalize the sitting judges of the highest Hon'ble court ,the
Supreme Court of our country. The statements by ChandarShekhar Azad 'Ravan' has scandalized the
judgments passed by the Supreme court judges and accusing them of being corrupt. If this kind of
precedent were allowed, political leaders would start making reckless allegation against the judges of the
highest Court of our country and this trend would soon lead to the failure of an independent judiciary
system. Through his statement, he has dishonoured the honorable Judges of the Supreme court who are the
guardians of the whole legal system and disgraced and jeopardized the integrity of the entire judicial
system. This kind of statement would affect the masses by growing sense of mistrust and concern among
public about the fall in the standards of the judicial sytem.
The AG observed that it is true that in his statement, 'scurrilous allegations' were made against the
Judges of the Supreme Court and the allegations are of a general nature, completely lacking in
material particulars. Further, stressing that the allegations appear to have been made with the intent
to be provocative, the AG, however, added that he did not believe that any member of the public
would take such statements seriously. '(I) am therefore of the opinion that these statements do not
substantially affect the administration of justice or lower the authority of the Supreme Court in the
public mind. I accordingly decline to grant consent under Section 15 of the Contempt of Courts Act,
1971,' concluded AG's letter.
News item dated 08/10/2021: "Breaking: No Bail For Aryan Khan, Arbaaz Merchant and Munmun
Dhamecha In Cruise Ship Drug Case As Mumbai Court Rejects Bail Pleas". The NCB raided a
high-profile rave party on Empress Cruise ship off the coast of Mumbai. On Saturday, October 2,
NCB's zonal director Sameer Wankhede led a team of officers for a raid at the International Terminal of
Mumbai Port Trust from where the Cordelia Cruise liner was to depart for Goa. Eight people were
detained after the NCB allegedly seized intermediate and small quantities of cocaine, MDMA (ecstasy),
charas and Rs 1,33,000 cash.
Aryan Khan, Arbaaz Merchant and Munmun Dhamecha were the first to be arrested. They were booked
under sections 8(c) read with 20b (purchase), 27 (consumption), 28 (attempt to commit offence), 29
(abetment/ conspiracy) and 35 (presumption of culpable mental state) of the NDPS Act, after six and five
grams of charas was allegedly seized from Merchant and Dhamecha respectively. "The scope of section
8(c) is very wide. Therefore, there may be a case that the person has not consumed the drug but is found in
possession, 8(c) will apply.”
"The object of (section) 29 is that the drug may not be found with the person but he still may have
conspired. Under section 35 (culpable mental state
Bollywood actor Shah Rukh Khan's son Aryan Khan and others who were arrested by the Narcotics
Control Bureau (NCB) in the cruise ship drugs case were produced before a magistrate court on
Thursday. Granting them some relief, eight accused were sent to judicial custody. So far, more than
15 people have been arrested by the NCB after raids were conducted on Cordelia Cruises' Empress
ship.
"A Mumbai Court rejects bail applications filed by Aryan Khan, son of actor Shahrukh Khan, Arbaaz
Merchant and Munmun Dhamecha accused in connection with the seizure of drugs on a luxury cruise ship
off the Mumbai coast. Additional Metropolitan Magistrate RM Nilekar observed that the bail pleas
are not maintainable, and are hence rejected. ASG Anil Singh, appearing for the Narcotics Control
Bureau, had opposed the bail pleas on the ground of maintainability. He argued that the offences alleged
against the accused are exclusively triable by the Special Court of Sessions under the Narcotic Drugs
and Psychotropic Substances Act, 1985, not a magisterial court. Yesterday, the Judge had rejected
further NCB Custody for the accused and remanded them to judicial custody instead. Advocate Satish
Maneshinde appearing for Aryan Khan today argued that there has been no recovery from Khan and that
the rigours of bail under Section 37 of the NDPS Act will not apply to him. Advocate Taraq Sayed
appearing for Arbaaz Merchant denied the allegation regarding recovery of 6 gm contraband. 'I am
shooting myself in the foot if contraband is found,' he remarked while demanding access to CCTV
footage of the incident. Advocate Ali Kashiff appearing for Munmum Dhamecha also argued that she
deserves to be released on bail given the fact that no recovery has been made from her and that the NCB
has been unable to show her connection with other co-accused. The ASG however alleged that the
WhatsApp chats between accused supplier Aachit Kumar and Aryan Khan refers to 'bulk
quantities of drug'. Courtroom Exchange Embargo on grant of bail u/s 37 NDPS not applicable
to Aryan Khan: Maneshinde Advocate Satish Maneshinde appearing for Aryan Khan argued that
Khan is not accused of consumption, which is punishable under Section 27 of the NDPS Act. Thus,
the embargo on grant of bail under Section 37 of the Act will not apply to Khan. 'There is no
material (against me), even in messages,' he argued. Maneshinde cited the bail order in Sohil Sk.
Samir v. State Of Maharashtra, where the appellant was released despite intermediate quantity.
'I am a 23-year-old with no prior antecedents. I happen to be from Bollywood. I went on an
invitation, refused when asked if I have drugs…Data from my mobile has been retrieved and sent
for forensics…I have been found with nothing, not an ounce but so much capital is being made out
of it,' he remarked. Maneshinde also relied on the judgement in Harsh Shailesh Shah v. State of
Maharashtra where the Bombay High Court, while adopting the reformative approach for the two
first-time offenders, granted bail in a case for possession and consumption of drugs. In this case, it
was held that prima facie purchasing drugs for another person at a party would not make one a
drug peddler to attract the rigours of section 37 for bail under the NDPS Act. Maneshinde added
that Khan has deep roots in the society as his family lives in Bombay and he has an Indian passport.
'I (Khan) am not going to abscond. There is no question of tampering. I should be granted bail,' he
submitted. Opposing this submission, ASG Singh submitted, 'What will have to be considered is
how influential the people are…there is a chance of tampering…This is not an isolated case and any
sort of protection in the nature of bail would hamper investigation.' 'Even if they want to say I
will tamper with evidence, they should come with a positive case of how I will do it. Just bald
allegations! Just because I come from an affluent family doesn't mean I'll tamper with evidence.
What influence have I used? I am suffering from the last six days,' Maneshinde responded for
Khan. Nothing to connect Arbaaz Merchant with other accused: Sayed Advocate Taraq Sayed
appearing for Arbaaz Merchant argued that there is nothing on record to connect him with the co-accused.
Merchant has allegedly been found with 6 gms of charas. He has denied the allegation and has filed an
application seeking access to the CCTV footage from when he was arrested. The prosecution has
opposed the said application saying that it will prejudice to the ongoing investigation.
Section 27 in The Narcotic Drugs and Psychotropic Substances Act, 1985, Punishment for
consumption of any narcotic drug or psychotropic substance.—Whoever, consumes any narcotic drug
or psychotropic substance shall be punishable,—
(a) where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine
or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the Central
Government by notification in the Official Gazette, with rigorous imprisonment for a term which may
extend to one year, or with fine which may extend to twenty thousand rupees; or with both; and
(b) where the narcotic drug or psychotropic substance consumed is other than those specified in or under
cluase (a), with imprisonment for a term which may extend to six months, or with fine which may extend
to ten thousand rupees or with both.]
Section 37 in The Narcotic Drugs and Psychotropic Substances Act, 1985
1[37. Offences to be cognizable and non-bailable.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section
27A and also for offences involving commercial quantity] shall be released on bail or on his own bond
unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force, on granting of bail.]
Section 37 in The Narcotic Drugs and Psychotropic Substances Act, 1985, Offences to be cognizable
and non-bailable.—
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section
27A and also for offences involving commercial quantity] shall be released on bail or on his own bond
unless—
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force, on granting of bail.]
News item dated 08/10/2021: A Dalit girl was allegedly abducted and raped by two men in Greater
Noida. The accused allegedly filmed the obscene act and threatened to post it on the internet. The accused
did not stop here, they allegedly made the girl consume poison and hurled casteist remarks at her. The
incident came to light when the girl's parents learned that she was pregnant. Reportedly, the accused
threatened to murder the girl and asked her to stay mum about the incident. Accused booked under SC/ST
Act and POCSO Act. The girl, however, shared her plight with her family, following which, her father
approached the police and lodged a complaint. Based on the allegations, the police booked the two accused
under Sections 328 (causing hurt by means of poison etc), 364 (kidnapping or abducting with intently to
secretly or wrongfully confine a person), 376D (gang-rape) along with other provisions of the Indian Penal
Code (IPC), The Times of India reported. The accused have also been booked under provisions of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as well as the Protection of
Children from Sexual Offences (POCSO) Act, 2012. A police official privy to the case said, “An FIR in
the case was lodged at the Kasna police station on September 28 on the basis of a complaint given by her
father. Investigation was taken up in the case immediately, and the accused, who were on the run, were
arrested.”
Section 328 in The Indian Penal Code, Causing hurt by means of poison, etc., with intent to commit
an offence.—Whoever administers to or causes to be taken by any person any poison or any stupefying,
intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to
commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause
hurt, shall be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
Section 364 in The Indian Penal Code, Kidnapping or abducting in order to murder.—Whoever
kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to
be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine. Illustrations
(a) A kidnaps Z from 2[India], intending or knowing it to be likely that Z may be sacrificed to an idol. A
has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed
the offence defined in this section. CLASSIFICATION OF OFFENCE Punishment—Imprisonment for
life, or rigorous imprisonment for 10 years and fine—Cognizable—Non-bailable—Triable by Court of
Session—Non-compoundable.
Section 376D in The Indian Penal Code, Intercourse by any member of the management or staff of a
hospital with any woman in that hospital.—Whoever, being on the management of a hospital or being
on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that
hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with
imprisonment of either description for a term which may extend to five years and shall also be liable to
fine. Explanation.—The expression “hospital” shall have the same meaning as in Explanation 3 to sub-
section (2) of section 376.]
Section 376(2) in The Indian Penal Code
(2) Whoever,—
appointed; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his
custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by
or under any law for the time being in force or of a woman’s or children’s institution takes advantage of
his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less
than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or
more in a group of persons acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s
or children’s institution” means an institution, whether called an orphanage or a home for neglected
woman or children or a widows’ home or by any other name, which is established and maintained for the
reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the
hospital and includes the precincts of any institution for the reception and treatment of persons
during convalescence or of persons requiring medical attention or rehabilitation.]
News item dated 08/10/2021: Mere exclusion of sibling from will not a ground to suspect its
genuineness : Supreme court
Case Title: V Prabhakara v Basavaraj K (Dead) by LR and Another.
CIVIL APPEAL NOS.1376-1377 OF 2010
Coram:Justices SK Kaul and MM Sundresh
Citation : LL 2021 SC 556
"While dealing with the validity of a Will, the Supreme Court observed that a mere exclusion of a sibling
per se from the Will would not create a suspicion against it, unless it is surrounded by other suspicious
circumstances. The Court stated that a testamentary court is not a 'court of suspicion' but a 'court of
conscience' that has to consider relevant materials instead of adopting ethical reasoning. In this case, the
Will was registered and its execution was admitted. The bench of Justices SK Kaul and MM Sundresh in
the present case was dealing with an appeal against a judgment of the High Court which had doubted
the genuineness of a Will upon which the appellant was basing his claim by observing that there was no
logic for excluding the appellant's siblings from the Will and that evidence by the attesting witness was
not sufficient enough to remove the suspicion around the Will (Exhibit P4).
The Top Court while setting aside the High Court's judgement in V Prabhakara v Basavaraj K
(Dead) by LR and Another. observed that, 'A testamentary court is not a court of suspicion but
that of conscience. It has to consider the relevant materials instead of adopting ethical reasoning. A
mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded
by other circumstances creating an inference. In a case where a testatrix (Ms Jessie Jayalakshmi now
'deceased') is accompanied by the sister of the beneficiary of the Will and the said document is
attested by the brother, there is no room for any suspicion when both of them have not raised any
issue.'
Factual Background:
A registered will (exhibit P4) was executed in favour of V Prabhakara ('appellant' in the present case) by
Ms Jessie Jayalakshmi ('deceased') on September 4, 1985, who had adopted the appellant as her son. The
will was attested by the Appellant's brother (Mr Vijay Kumar) and even the deceased was brought to the
sub registrar's office. Although the deceased and her husband (Respondent No 1) obtained a divorce
decree on March 26, 1988, her husband was permitted to reside in the suit property. The appellant filed a
suit for declaration and possession of when the deceased's husband and her son (Respondent No 2) refused
to vacate the suit property (residential house for which appellant paid all statutory dues.)
Case Before Trial Court:
Before the trial court, the Respondents acknowledged the factum of execution of the registered will
(exhibit P4) but introduced an unregistered will (exhibit D1) which was allegedly executed between the
deceased and respondent no 2. It was also their contention that D1 spoke about the mortgage between the
deceased and her husband upon payment of Rs 31,000 in the deceased's favour. The trial court on
December 11, 2003, decreed the suit after being satisfied that to prove exhibit P4 (registered will)
parameters u/s 63 of the Indian Succession Act r/w section 68 of the Indian Evidence Act,1872 were
complied with. The court also gave reasons while doubting the genuineness of exhibit D1.
Case Before High Court
Aggrieved, the Respondents approached the High Court invoking section 96 of Code of Civil Procedure,
1908. Although the High Court affirmed the reasons for doubting the genuineness of the unregistered will
(exhibit D1), the High Court entertained a suspicion and dismissed the suit while allowing the appeal.
The High Court observed that there was no logic for excluding the appellant's siblings from the will and
that evidence by attesting witness was not sufficient enough to remove the suspicion around exhibit P4.
The appellant had also filed an application for review which was dismissed by the High Court on
November 23, 2007. Aggrieved, the appellant approached the Top Court.
Counsel's Contentions:
The appellant's counsel contended that exhibit P4 was a registered document that was deposed by the
appellant's brother and an attesting witness. He also contended that the fact that the appellant's sister
accompanied the deceased showed that the will was registered properly. The counsel also contended that
there was no pleading disputing exhibit P4 and that the High Court created its own suspicion. On the
other hand, the Respondent's counsel contended that the question as to whether there existed a suspicious
circumstance was a fact that could not be adjudicated by invoking Article 136. It was also the counsel's
contention that there was no reason for exclusion of the appellant's siblings from the will. Relying on the
judgements in Joseph Antony Lazarus (Dead) by LRs v A.J. Francis, (2006) 9 SCC 515 and Mahesh
Kumar (Dead) By LRs v Vinod Kumar & Ors., (2012) 4 SCC 387 the counsel submitted that the first
appellate court had got adequate jurisdiction to satisfy itself on the suspicion surrounding exhibit P4.
Supreme Court's Observations:
Considering that the conduct of a party would be construed as a fact under section 8 of the Indian Evidence
Act, 1872, the bench comprising Justices SK Kaul and MM Sundresh observed : "Section 3 of the Indian
Evidence Act defines "a fact". The conduct of a party would be construed as a fact under Section 8. Such
conduct may either be a previous or subsequent one. It is the product of a motive or a preparation When
evidence is given on the conduct of a party and if it is proved to the satisfaction of the court particularly
when it involves an admission, adequate weightage is required to be given. Such conduct would include a
silence emanating from a party who is expected to speak and express. When a party makes a claim based
upon revocation of the earlier Will, as indicated in the subsequent one, the said acknowledgement of the
former would form part of conduct leading to a relevant fact vis-à-vis a fact in issue."
News item dated 09/10/2021: Custody Of Child Obtained By Playing Fraud On Court Liable to be
declared Void Ab Initio : Supreme Court
"The Supreme Court has recalled an order granting custody of a child to a Kenyan citizen of Indian origin
after finding that he had played fraud on the court and had approached it with unclean hands by
suppressing material facts. (Smriti Madan Kansangra v. Perry Kansangra).The Court declared its
earlier order granting custody to the father who played fraud as 'illegal' and 'ab initio void'.Observing that
the party has defied the conditions imposed by the Court for taking the child to Kenya after securing his
custody, the Court directed the CBI to initiate proceedings to secure and entrust the custody of the child to
his mother. The Court also asked the Centre and the Indian mission in Kenya to help the mother and
ordered registration of a suo motu contempt case against Perry Kansagra, the father of the child. The Court
has directed Perry Kansagra's physical presence before it on November 16 and asked the registry to pay Rs
25 lakh as litigation cost, from the amount deposited earlier by him with it, to his wife. A bench
comprising Justices Uday Umesh Lalit, Ajay Rastogi and Hemant Gupta observed in the judgment as
follows :'It is fundamental that a party approaching the Court must come with clean hands, more so in child
custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the
orders of the Court would negate and nullify the element of the trust reposed by the Court in the concerned
person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned
parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then
hand over the custody to the person who in the eyes of the Court, would be the most suitable person. Any
action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud
on the process of the Court'.Background FactsIn October 2020, a 3-judge bench of the Supreme Court had
held by 2:1 majority that the Indian-origin father, who was then residing at Kenya, was entitled to the
custody of the child. While Justices UU Lalit and Indu Malhotra(since retired) gave the custody of the son
to the father, Justice Hemant Gupta dissented to hold that the mother was entitled to the custody.The
majority imposed a condition that the father should obtain a 'mirror order' from the corresponding Kenyan
court within two weeks to take the child to Kenya. Later, the mother filed an application stating that the
father got custody by allegedly giving a forged or wrong mirror order from the Kenyan High Court. It
was also alleged that he not only refused to obey the directions granting visitation or meeting rights to
the mother but also moved the Kenyan court for declaration of invalidity of Indian jurisdiction and/or
laws and/or judgments denying, violating and/or threatening to infringe the fundamental rights of the
Minor through purported and unenforceable judgments and orders relating to the Minor under Articles
23(3) (d) of the Constitution of Kenya.The Supreme Court found that at every juncture solemn
undertakings were given by Perry to the Court were not only flagrantly violated but a stand is now taken
challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction
of the Indian Courts. 'Such conduct, prima facie, can certainly be said to be contumacious calling for an
action in contempt jurisdiction. Moreover, the non-disclosure of material facts by Perry at the relevant
junctures also shows that he approached the Indian Courts with unclean hands', said the bench.'These
developments not only show the defiant and contumacious posture now adopted by Perry but prima facie
support the submissions of the mother made in Interim Applications … There appears to be concrete
material and reason to believe that it was a well-planned conspiracy on part of Perry to persuade this Court
to pass orders in his favour and allow him the custody of the son and then turn around and defy the Orders
of this Court', the bench observed in the judgment.The following directions were issued : The Central
Bureau of Investigation (CBI), New Delhi through its Director is directed to initiate appropriate
proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of
Aditya to Smriti, it said.The Secretary, Ministry of External Affairs, Government of India, New Delhi,
and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support
is extended to the mother in securing the custody of the son, it said. The Guardianship Petition filed by
Perry in District Court, Saket for permanent custody of the son, and the resultant proceedings arising
therefrom in the High Court are dismissed, it said.The orders granting custody having been recalled, the
custody of the son with Perry is declared to be illegal and ab initio void.
News item dated 13/10/2021: Uthra Murder : Husband Who Murdered Wife By Inducing Snake Bite
Sentenced To Consecutive Double Life Imprisonment By Kerala Court
In a crime that numbed the State, Uthra, a 25-year-old homemaker, was found dead at her home from a
snakebite on 7th May 2020. Although initially, attempts were made to dismiss it as a natural snakebite, her
family suspected foul play in her death.The skepticism arose from the fact that the deceased has been
repeatedly subjected to harassment from her husband and his family for dowry. They argued that it was
impossible for a snake to find its way into a closed air-conditioned room, particularly since the floor was
tiled.Her family further alleged that the murder was carried out to acquire gold and property.These
suspicions were fortified by the fact that less than nine weeks before the incident, Uthra sustained another
near-fatal attack from a viper. She was recovering from the same when her life was claimed by the second
snakebite. Although the neighbours attempted to trivialise the entire narrative as the family being haunted
by the wrath of the snake, her parents stood their ground and demanded an investigation. Accordingly, a
police investigation followed, and the 1000 paged charge sheet unraveled the elaborate conspiracy planned
and implemented by her husband, the accused herein.The accused was consequently arrested with another
man who helped him procure both the snakes. The handler later turned approver and disclosed that both
the snakes were sold for Rs. 10,000 together and that he did not know the purpose behind the purchase.The
accused thereafter confessed to his crime during interrogation and admitted that he had stored two snakes
in a jar without feeding them with the intention of killing his wife.Later on, his father, mother and sister
were also arrested after recovering around 38 sovereigns of Uthra's gold that was found buried in a rubber
estate behind their residence.
The Court had earlier found the accused guilty of offences under Section 302, 307,328 and 201 of the
Indian Penal Code (IPC).
Section 302 in The Indian Penal Code, Punishment for murder.—Whoever commits murder shall be
punished with death, or 1[imprisonment for life], and shall also be liable to fine.
Section 307 in The Indian Penal Code, Attempt to murder.—Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be
liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by
life convicts.—2[When any person offending under this section is under sentence of 1[imprisonment for
life], he may, if hurt is caused, be punished with death.] llustrations
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be
guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has
committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun
at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable
to the punishment provided by the latter part of 3[the first paragraph of] this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in
A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or
delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.
Section 328 in The Indian Penal Code, Causing hurt by means of poison, etc., with intent to commit
an offence.—Whoever administers to or causes to be taken by any person any poison or any stupefying,
intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to
commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause
hurt, shall be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
Section 201 in The Indian Penal Code, Causing disappearance of evidence of offence, or giving false
information to screen offender.—Whoever, knowing or having reason to believe that an offence has been
committed, causes any evidence of the commission of that offence to disappear, with the intention of
screening the offender from legal punishment, or with that intention gives any information respecting the
offence which he knows or believes to be false; if a capital offence.—shall, if the offence which he knows
or believes to have been committed is punishable with death, be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to fine; if punishable with
imprisonment for life.—and if the offence is punishable with 1[imprisonment for life], or with
imprisonment which may extend to ten years, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten
years’ imprisonment.—and if the offence is punishable with imprisonment for any term not extend ing to
ten years, shall be punished with imprisonment of the description provided for the offence, for a term
which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or
with fine, or with both. Illustration A, knowing that B has murdered Z, assists B to hide the body with the
intention of screening B from punishment. A is liable to imprisonment of either description for seven
years, and also to fine.
In the Uthra murder case, a Kerala court on Wednesday sentenced Sooraj S Kumar to double life
imprisonment and a five lakh fine for murdering his wife by inducing a homicidal snakebite. He was also
awarded 10 years and 7 years of imprisonment in two other cases for causing hurt by means of poison and
destroying evidence. The sentencing will have to run consecutively.
==========================================
What is Panchnama called in English?
A record of witness testimony, usually prepared by the police, during the investigation of a crime or after
a death. Panchanama is a Sanskrit word 'Panch' means respectable person; 'nama' means a written thing. A
written account of some transaction, which had taken place in the presence of respectable persons (two or
more than two).
Traditionally, panchas were five persons who acted as witnesses during police raids. Currently, however,
there are two persons who are “respectable inhabitants of society” meant to be independent witnesses who
should be present with the police during search and seizure. The two act as witnesses to corroborate in
writing down things that are seized from the scene of crime.
The document so prepared, where the witnesses or panchas affirm the things found by the police from the
spot by signing it, is called a panchnama. Panchnama is used during the trial to support the evidence
provided by the prosecution and confirm the authenticity of the seizure.
What is the meaning of panch witness?
The witnesses are called "Panchas". It is to be noted that the Panchas are to be two or more independent
and respectable persons i.e. persons who are not of disrepute. ... The Panch (witness) can refresh his
memories while giving evidence in the Court as per section 159 of the Indian Evidence Act, 1872.
There are different kinds of Panchnama prepared during investigation, which are categorized as search,
seizure, recovery, discovery, arrest, inquest, test identification parade. Out of these some of them are a part
of mandatory procedure laid down in different provision of Cr
Can a police informer act as a witness?
As per the Criminal Procedure Code, the person has to be an independent witness, meaning he should not
be known to the police from before, as it could make him act in a biased manner. Hence, anyone known to
the police like a police informer cannot be a pancha.

Have any such controversies related to panch witnesses taken place in the past?
In several cases during trials, the defence lawyer has proved that a particular panch witness is a “habitual
witness”, following which their evidence is not taken on record by the court. In 2014, during the trial of the
rape and murder of a woman in Pune, the defence argued that the same “panch witness” was used in nearly
5,000 cases by the police. A habitual witness means that a person has been used as a witness by the police
in several cases, indicating that the person is known to the police. As per law, the witness has to be an
independent person not known to the investigating agency so that his testimony is considered fair and
neutral. If it is proved he/she is known to the police, there are doubts raised on the credibility.
==========================================
Test of identification parade is integral part of investigation. In regard to the admissibility of test of
identification parade (TIP), they are relevant by virtue of Section 9 of Indian Evidence Act. TIP also
tests the memory of the witnesses. The identity of an offender in a criminal trial assumes a vital
importance. In every case the crime is not disputed but the person who committed the offence is disputed.
Therefore, the identity of accused becomes relevant. In cases where there is an undisputed evidence the
suspect was caught red handed while committing crime or in cases where accused was well acquainted
with the witnesses or victims, the question of identity becomes rather irrelevant.
“… the identification in the course of a TIP is intended to lend assurance to the identity of the
accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an
identification parade.”
Test Identification Parade: Principles summarised: The purpose of conducting a TIP is that persons
who claim to have seen the offender at the time of the occurrence identify them from amongst the
other individuals without tutoring or aid from any source. An identification parade, in other words,
tests the memory of the witnesses, in order for the prosecution to determine whether any or all of
them can be cited as eyewitness to the crime;
 There is no specific provision either in the CrPC or the Indian Evidence Act, 1872 which
lends statutory authority to an identification parade. Identification parades belong to the
stage of the investigation of crime and there is no provision which compels the investigating
agency to hold or confers a right on the accused to claim a TIP;
 Identification parades are governed in that context by the provision of Section 162 of the
CrPC;
 A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude
(prevent from happening; make impossible.) a possibility of the accused being shown to the
witnesses before it is held;
 The identification of the accused in court constitutes substantive evidence;
 Facts which establish the identity of the accused person are treated to be relevant under
Section 9 of the Evidence Act;
 A TIP may lend corroboration to the identification of the witness in court, if so required;
 As a rule of prudence, the court would, generally speaking, look for corroboration of the
witness’ identification of the accused in court, in the form of earlier identification
proceedings. The rule of prudence is subject to the exception when the court considers it safe
to rely upon the evidence of a particular witness without such, or other corroboration;
 Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto
make the evidence of identification inadmissible;
 The weight that is attached to such identification is a matter to be determined by the court in
the circumstances of that particular case;
 Identification of the accused in a TIP or in court is not essential in every case where guilt is
established on the basis of circumstances which lend assurance to the nature and the quality
of the evidence; and
 The court of fact may, in the context and circumstances of each case, determine whether an
adverse inference should be drawn against the accused for refusing to participate in a TIP.
However, the court would look for corroborating material of a substantial nature before it
enters a finding in regard to the guilt of the accused.
==========================================
Alibi is a maxim which means at another place. ... The fact or state of having been elsewhere when an
offense was committed." Alibi, therefore, is a defense which can be taken by the accused in the criminal
proceedings by taking the plea that when the offence was committed, the accused was not present at that
place.
==========================================
Special Leave Petition (SLP) holds a chief place in the Judiciary of India. ... Under this, the aggrieved
party is provided a special permission to be heard in Apex Court in appeal against the order or judgment of
any court or tribunal in the territory of India. This is not an appeal but a petition filed for an appeal.
A Special leave Petition (SLP) can be filed within: 90 days from the date of judgement/order/decree by a
Court or Tribunal; Or. Within 60 days against the order of the High Court refusing to grant the certificate
of fitness for appeal to Supreme Court.
The two forms of case status officially recognized by Indian Courts are “Pending” and “Decided”. §
Pending alludes to all cases which are not decided.
Any aggrieved party can file SLP against the judgment or order of refusal of grant of certificate. Contents
of SLP: This petition is required to state all the facts that are necessary to enable the court to determine
whether SLP ought to be granted or not. It is required to be signed by Advocate on record.
Special Leave petition [SLP] is also a constitutional remedy. Under this jurisdiction, the Supreme
Court may in its discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the territory of
India.
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the High Court
concerned under Article 132(1), 133(1) or 134 of the Constitution in respect of any judgement, decree or
final order of a High Court in both civil and criminal cases.
==========================================
When contracts are entered between the parties, it imposes a contractual obligation on them for the
performance of the contract. However, many times due to unforeseeable circumstances the performance of
the contracts becomes impossible. In such cases, the contract is said to be frustrated. What is the Doctrine
of Frustration?
The general rule of contracts states, that the parties to a contract have to fulfill their obligations under the
contract and in case of breach, the party breaching the contract has to compensate the other for the
damages caused. The doctrine of frustration is an exception to this rule.
The doctrine of frustration basically talks about the impossibility of performance of the contract. It
means a contract cannot be executed because of an incident beyond the control of parties. The performance
of such a contract becomes frustrated i.e. it becomes complicated, impossible or even illegal. The
frustration of contract can be due to any unforeseen, impossible events and events out of control of the
parties.
The doctrine of Frustration under Indian Contract Act
The Indian Contract Act, 1872, does not define the term “frustration of contract”. However, the doctrine of
frustration is enshrined under section 56 of the Act. According to section 56, an agreement to do an
impossible act is in itself void. Further, it states that when a contract to do an act becomes impossible, or,
by reason of some event which the promisor cannot prevent, it becomes unlawful, the whole contract
becomes void when the act becomes impossible or unlawful.
Section 56 in The Indian Contract Act, 1872, Agreement to do impossible act.—An agreement to do
an act impossible in itself is void. — Contract to do act afterwards becoming impossible or unlawful.—A
contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event
which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or
unlawful. Compensation for loss through non-performance of act known to be impossible or unlawful.—
Where one person has promised to do something which he knew, or, with reasonable diligence, might have
known, and which the promisee did not know, to be impossible or unlawful, such promisor must make
compensation to such promisee for any loss which such promisee sustains through the non-performance of
the promise. Illustrations
(a) A agrees with B to discover treasure by magic. The agreement is void.
(b) A and B contract to marry each other. Before the time fixed for the marriage, A goes mad. The contract
becomes void. Death or Incapacity of a party.
(c) A contracts to marry B, being already married to C, and being forbidden by the law to which he is
subject to practise polygamy. A must make compensation to B for the loss caused to her by the non-
performance of his promise. Legal or Government intervention.
(d) A contracts to take in cargo for B at a foreign port. A’s Government afterwards declares war against the
country in which the port is situated. The contract becomes void when war is declared. The intervention
of War.
(e) A contracts to act at a theatre for six months in consideration of a sum paid in advance by B. On several
occasions A is too ill to act. The contract to act on those occasions becomes void.
==========================================
What is the meaning of de minimis non curat lex?
Often shortened to “de minimis”, this Latin phrase means that the law does not take account of
trifling matters, or matters of little or no value or importance.
Usage in a sentence: To negotiate with the Union on those conditions that we would consider de minimis.
It is a common law principle whereby the court will not sit in judgment of extremely minor transgressions
of the law. In general, the maxim refers that the courts will not intervene in disputes where the substance of
the controversy is insignificant. Its application sometimes leads to an action being dismissed, especially
when the only redress being sought is for a nominal sum, such as a dollar. The law does not encourage
parties to bring legal action where the impact of the breach is negligible for technical breaches of rules or
agreements. In other words, such exceptions are commonly included in contracts to limit the use of
covenants or other restrictions so that they do not apply in circumstances where the failure to comply with
the restriction has negligible impact. The maxim is recognized under Section 95 of Indian Penal Code.
Illustration: A promises B that he will accompany him to the movie on Saturday. Believing it, B books
the tickets worth 150/- each. However, on Saturday A canceled his plan to the movie as he had to attend a
class. This resulted in B to cancel the tickets at the end moment as a result of which he did not get a refund.
Angry with this B filed a suit against A. In such cases, where the matter in issue is negligible or extremely
minor, the court will not entertain the suit and dismiss it accordingly.
Why is the cy pres doctrine?
This doctrine will become active if the intended wishes or conditions of the original document cannot be
carried out, be legitimately interpreted literally, or legally performed. Cy pres gives the court the flexibility
to understand the perceived intent of the donor or testator and implement their wishes.
Does cy pres apply to wills?

In order to be able to follow the decedent's wishes in such a case, the courts employ something called the
cy pres doctrine. The cy pres doctrine is a flexible approach to wills and trusts designed to honor the
testator's intent. ... This means the court can't use it to change a beneficiary on its own.
Section 84 in The Indian Penal Code, Act of a person of unsound mind.—Nothing is an offence which
is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of
knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
The followings are the main points of McNaughton's rules:
1. Every man is to be presumed to be sane and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary be proved
2. An insane person is punishable "if he knows" at the time of crime To establish a defense on
insanity, the accused, by defect of reason or disease
3. of mind, is not in a position to know the nature and consequences The insane person must be
considered in the same situation as to responsibility
4. as if the facts with respect to which the delusion exists were real
5. It was the jury's role to decide whether the defendant was insane.
McNaughton's rules stressed on "understandability of right and wrong" and "intellectual" rather than a
moral or affective definition dominated in its formulation. Lack of control and irresistible drives or
impulses were neglected. In essence, it was the "test of knowing" or "test of right and wrong." If
McNaughton's rules had been applied to McNaughton at the time of trial, he could not have been found
guilty on the grounds of insanity. [8]
The spellings for his name vary in many instances, but hospital records and court documents support the
spelling "McNaughton".
Section 84 IPC embodies McNaughton rules as follows:

"Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to
the law." [9]
Only legal insanity (mental illness at the time committing the crime) and not medical insanity falls within
the purview of section 84 IPC. Unsoundness of mind should be established is the time when the crime is
actually committed and the burden of proving this lies on the accused and it is sufficient if this plea is
established by preponderance of probabilities and not by proof beyond reasonable doubt. Such a plea can
be established from the circumstances which preceded, attended and followed the crime.
A dichotomy of section 84 IPC reveals the following ingredients.
1. The accused was insane

2. He was insane at the time of the crime and not merely before or after the act and
3. As a result of unsoundness of mind, the accused was incapable of knowing the nature of act or he
was doing what was really wrong or contrary to law.
Irresistible impulses, mental agitation, annoyance, and fury all merely indicate loss of control and are not
indicative of unsoundness of mind. Every mild mental aberration is not insanity and the circumstances
indicating mere probability of legal insanity cannot however be sufficient to discharge the onus of the
accused to establish the plea of insanity.
==========================================
Strict Liability
In the curious case of strict liability, the aforementioned concept of ‘fault’ is absent, along with intention
and motive. This is because there are many activities which are so dangerous that they constitute risks to
persons and property, and responsibility must be borne by some person in case of any harm. The law
allows the potentially harmful activities to be carried on for the sake of social utility, but only in
accordance with safety measures and the doctrine of strict liability – called so because the liability
arises even without any negligence on the part of the defendant.
The essentials of strict liability are the presence of a dangerous substance, non-natural use of the land
and escape of that substance from the defendant’s property. There are certain exceptions to the rule of
strict liability. These include ‘Plaintiff’s own fault’, ‘Vis Major’, ‘Act of the third party’ and ‘Consent of
the plaintiff’.
The Rule in Rylands v. Fletcher :
The rule in this case rests on the idea of foreseeability of damage; the person who is the source of damage
is penalized for failing to avert the reasonably foreseeable damage.
Facts: Rylands and Fletcher were neighbours. Fletcher owned a mill, for the energy purposes of which he
hired independent contractors and engineers to construct a water reservoir on his land. It so happened that
there were old unused shafts under the site of the reservoir which the engineers failed to notice and block.
Due to the negligence of the contractors, when water filled Fletcher’s reservoir, the water entered Rylands’
coal mine and caused huge loss, for that is where the shafts led. Subsequently, Ryland filed a suit against
Fletcher. The defendant claimed that it was the fault of the contractors’, and the cause of damage was
unknown to him.
Issue: Whether a person who disrupts the natural state of a property by lawfully bringing something
onto his land that, if it escapes, can potentially do harm, is strictly liable for any harm caused by the
escape ? It was notable because there was no negligence or intention on part of the defendant.
Judgment: The House of Lords rejected the plea of the defendant and held him liable for all the damages
to Rylands’ mine.
The court held that Rylands built the reservoir at his risk and so any damage caused in its course, he shall
be held liable for the accident and its escape.
 The defendant brought something onto his land: The defendant brought water to his land
which was not something that naturally occurs there like rocks or thistles.
 There was a non-natural use of land: The water was the non-natural element since it didn’t
naturally occur there.
 Escape: The water from the reservoir escaped from the defendant’s land to the plaintiffs land
which caused him to suffer damages.
Thus the case fulfilled all the ingredients that constitute to strict liability. Rylands was held liable for
the damages caused to Fletcher’s property and was compensated for the physical harm caused to his land.
According to the rule set by this case, if a person brings on his land and keeps there any dangerous thing, a
thing which is likely to do mischief if it escapes, he will be prima facie answerable to the damage caused
by its escape even though he had not been negligent in keeping it there. Despite there being no fault or
negligence on the part of the defendant, he was held liable because he kept some dangerous thing on his
land and the said dangerous thing has escaped from his land and caused damage.
The Exceptions
There are certain exceptions to this rule, which are:
 Default of the Claimant
If the damage is caused solely by the act or default of the claimant himself, there is no remedy for him.
 Consent of the claimant
Where the claimant has expressly or implicitly consented to the presence of the source of danger and there
has been no negligence on the part of the defendant, the defendant is not liable.
 Act of God
An event which directly and exclusively results from natural causes that could not have been prevented by
the exercise of foresight or by the exercise of caution may be called an Act of God. Say, if the escape was
unforeseen and without any human intervention, caused by some super natural force, then the defendant
will not be liable.
 Statutory Authority
An act done under the authority of a statute exempts the defendant from tortious liability. However, the
defence cannot be pleaded if the if there is any kind of negligence on the part of the defendant.
 Act of Third Party
The rule of strict liability doesn’t apply when the damages are caused due to the act of a stranger, i.e. a
person who is not the servant nor is under the control of the defendant. However, due care must be taken
by the defendant to avoid the damages if the act of the stranger can be foreseen by the defendant.
Absolute Liability
Simply put, absolute liability is the application of strict liability, but without the exceptions.
The rule of absolute liability was evolved in the case of M.C. Mehta v. Union of India [2], and took
strict liability one step further by stating that an enterprise which is engaged in a hazardous or inherently
dangerous activity is absolutely liable for the harm resulting from the operation of such activity, and to
compensate to all those who are affected by the accident.
Facts: On the 4th and the 6th of December, 1985 in Delhi, there was severe leakage of oleum gas which
this took place in one of the units of Shriram Foods and Fertilizers Industries, which belonged to the Delhi
Cloth Mills Ltd. Due to this, an advocate practicing in the Tis Hazari Court had died and many others were
affected by the same. A writ petition by way of public interest litigation (PIL) was brought to the court.
Issue:. It was contested that if all the tragedies arising from the conduct of the large factories follow the
rule of strict liability, they will fall under the exceptions and get away scot free for the damage they have
caused in the conduct of their activity.
Judgment: The Court had noted that this was the second case of large-scale leakage of a deadly gas in India
within the period of a year in India, as a year earlier more than 3000 people had died due to the leakage of
gas from the Union Carbide plant in Bhopal and lakhs of others were subjected to various other kinds of
diseases. If the rule of strict liability laid down in Rylands v. Fletcher was applied to such situations,
then those who had established “hazardous and inherently dangerous” industries in and around thickly
populated areas could escape the liability for the havoc caused thereby by pleading some exception. The
Supreme Court therefore evolved a new rule – the rule of “ Absolute Liability”, as coined by the then
Chief Justice of India PN Bhagwati.
ABSOLUTE LIABILITY STRICT LIABILITY
Hazardous or inherently dangerous activities Any other activities
Escape not necessary – liability within and
Escape necessary
outside premise
No exceptions to the rule Provides for exceptions
Applies to Non-Natural and Natural uses of land Applies only to Non-Natural use of land
ABSOLUTE LIABILITY STRICT LIABILITY
The difference between Strict and Absolute liability was clearly mentioned by the Supreme Court
in M.C.Mehta v. Union of India, where the court summarised it broadly as follows:
 In Absolute Liability only those enterprises shall be held liable which are involved in hazardous or
inherently dangerous activities.
 The escape of a dangerous thing from one’s own land is not necessary. Absolute liability is
applicable to those injured within the premise and outside the premise.
 The rule of Absolute liability does not have any exceptions, unlike the rule of Strict Liability.
 The rule elucidated upon in Ryland v. Fletcher applies only to the non-natural use of land, but
absolute liability applies even to the natural use of land. If a person uses a dangerous substance
and if such substance escapes, he shall be held liable even though he have taken proper care.
 The extent of damages depends on the magnitude and financial capability of the institute. The
Supreme Court also stated that the enterprise must be held to be under an “obligation to ensure
that the hazardous or inherently dangerous activities in which it is engaged must be conducted
with the highest standards of safety and security and if any harm results on account of such
negligent activity, the enterprise/institute must be held absolutely liable to compensate. for any
damage caused and no opportunity is to given to answer to the enterprise to say that it had taken
all reasonable care and that the harm caused without any negligence on his part”.
==========================================
'Pious obligation' means duty of a Hindu due to deep devotion to religion. Hindu law states that 'He who
having received a sum lent or the like does not repay it to the owner will be born hereafter in his creditors
house a slave, a servant or a woman or a quadruped '. As per Hindu scriptures, it is the holy duty of a son
to pay off or discharge his father's debts. The religious obligation is attached to the son as well as grandson
and to the great grandson also, on the ground that all the three are coparceners with others by their birth.
It is said that non-payment of debts is a sin and also a crime. Any person, who died leaving the debts
behind cannot go to heaven. The 'putra' i.e. the son, son's son and son's son's son by repaying/clearing off
such debts, discharges his parted father/ancestor from the indebtedness and enables/facilitates him to reach
the heaven. This duty or obligation of a son to repay the debts of the deceased father ( parted
ancestor ) is rested upon a special doctrine, known as "The Doctrine of Pious Obligation" - However,
this obligation extends to non-avyavaharika (or vyavaharika) debts only. Avyavaharika debt is one, which
is taken for illegal or immoral purpose. Eg :- Gambling, Races etc.
What is son's pious obligation- history
If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored,
after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If
they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether
he may be the senior of the family or a younger member, who, during the absence of the oldest, or on
account of his incapacity, has undertaken the management of the family estate.
==========================================
What is res gestae in evidence Act?

Res Gestae is a Latin term which mean “Things done”. Res Gestae is used to refer to a declaration that is
made at an event that proves the event happened because the words were uttered upon witnessing the
event.
Is res gestae admissible?
In the law of evidence, res gestae denotes both a rule of relevance according to which events forming part
of the res gestae are admissible and an exception to the hearsay rule under which statements forming part
of the res gestae are admissible.
What is res gestae in Section 6 of evidence Act?
Section 6 of the Indian Evidence Act explains the principle of res gestae. Hearsay evidence is not
admissible in court of law. ... If any statement is made under the stress of excitement than such statement
form part of the same transaction and is admissible before the court of law.
==========================================
According to old Hindu Law, when two persons offer Pinda to same ancestors, then it is said that
they are in a sapinda relationship. Pinda means the ball of rice offered at a sraddha ceremony to
deceased ancestors. So, two persons would be sapindas if one offers Pindas to the other (e.g. son and
father) or both offer Pindas to a common ancestor (e.g. brothers) or if both receive Pindas from the same
persons (e.g. husband and wife for both will receive Pindas from their sons). If there is any common
ancestor of 2 persons then both are sapinda to common ancestor and they would be sapinda of each other.
Section 5(v) of the Act says that marriage between the persons having sapinda relationship is
prohibited unless there is a custom which allows them to do so. Violation of this clause would amount to
simple imprisonment up to 1 month or a fine of Rs. 1000/- or both under section 18(b) of the act.
Degrees of Prohibited Relationship –
There are few relationships under which a Hindu marriage can never be solemnized. This domain of
relationship is known as “degrees of prohibited relationship. In other words, we can say that if two persons
come under the realm of this relationship then their marriage can never be performed. This is because the
Dharamshastra considered sex relationship with one’s mother or one’s sister or one’s daughter or one’s
son’s wife as highest sin i.e. Mahapataka. Section 3(g) defined persons falling within a prohibited degree
of relationship. They are: (a) If one is a lineal ascendant of the other; or (b) If one was the wife or the
husband of a lineal ascendant or descendant of the other; or (c) If one was the wife of the brother or the
father’s or mother’s brother or the grandfather’s or grandmother’s brother of the other. (d) If two are
brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or two brothers or
two sisters. It also includes (i) Relationship by half or uterine blood as well as by full blood; (ii)
Illegitimate blood relationship as well as legitimate; (iii) Relationship by adoption as well as by blood. For
a man his prohibited degree of relations are: (i) His lineal ascendant (ii) Wife of his lineal ascendant (iii)
Wife of his lineal descendant (iv) Brother’s wife (v) Wife of his father’s brother (vi) Wife of his mother’s
brother (vii) Wife of his grandfather’s brother (viii) Wife of his grandmother’s brother (ix) Sister (x)
Sister’s daughter (xi) Father’s sister (xii) Mother’s sister (xiii) Father’s sister’s daughter (xiv) Father’s
brother’s daughter and (xv) Mother’s brother’s daughter.
Similarly, for a woman her prohibited degree of relations are: (i) Her lineal ascendant (ii) Husband of her
lineal ascendant (iii) Husband of her lineal descendant (iv) Brother (v) Father’s brother (vi) Mother’s
brother (vii) Nephew (viii) Sister’s son (ix) Uncle’s son (x) Father’s sister’s son (xi) Mother’s sister’s son
and (xii) Mother’s brother’s son.
Section 5(iv) of the Act prohibits solemnization of marriage of persons falling within the prohibited
degree of relationship. Violation of this clause would amount to simple imprisonment up to 1 month or a
fine of Rs. 1000/- or both under section 18(b) of the act.
==========================================
Section 2 (2) of Civil Procedure Code, 1908, "decree" means the formal expression of an
adjudication which, so far as regards the Court expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of
any question within section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.
Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him while
B claims that the said property belongs to him. After hearing all the arguments, the court will rule in the
favor of either A or B. The final decision of the court regarding the above claim i.e. whether the property
belongs to A or B, is a decree.
Essential elements of a Decree: Following are the mandatory elements to be fulfilled for the adjudication
to be termed as a decree.
1. Formal expression: There must be a formal expression of adjudication. In simple terms to be a decree,
the court must formally express its decision in the manner provided by law. A mere comment of the judge
cannot be a decree. The decree follows the judgement and must be drawn up separately. If a decree has not
been drawn up, then there is absolutely no scope of an appeal from the judgment i.e. No appeal lies against
the judgement, if the decree is not formally drawn upon the judgement.
2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is of
administrative in nature, then it cannot be considered as a decree. The adjudication must be about any or all
of the matters in controversy in the suit. The court should resolve the matter of controversy through its
own, by applying the facts and circumstances of the case therein. The Supreme Court in Madan Naik v.
Hansubala Devi, held that if the matter is not judicially determined then, it is not a decree. Also, in Deep
Chand v. Land Acquisition Officer,the apex court held that the adjudication should be made by the officer
of the Court, in absence of which it is ought not to be recognized as a decree.
3.Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in a civil
court. Without a civil suit there lies no decree. However, there are several specific provisions which enable
certain applications to be treated as suits such as proceedings under the Hindu Marriage Act the Indian
Succession Act, the Land Acquisition Act, etc. They are regarded as statutory suits and the decision given
thereunder are decrees. In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric
Tramway Co. Ltd., their Lordship of the Privy Council stated that the word; ordinary means, a civil
proceeding instituted by the presentation of a plaint.
4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights. Similarly, the
parties to the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon
the application made by a third party who is a stranger to suit then it is not a decree. It must have
determined the rights of the parties with regard to all or any of the matters in controversy in the suit.An
order rejecting the application of a poor plaintiff to waive the court costs is not a decree because it does not
determine the right of the party in regards to the matters alleged in the suit. Dismissing a suit for default in
appearance of the plaintiff is not a decree. However, dismissing a suit on merits of the case would be a
decree. The disputed matter should be the subject matter of the suit, regarding which the relief is sought.
Any question regarding the status and characters of party suing, the jurisdiction of the court,
maintainability of suit or any other preliminary matter is covered under this subject.
5. Conclusive Determination: The decision must be one which is complete and final as regards the court
which passed it. This means that the court will not entertain any argument to change the decision i.e. as far
as the court is concerned, the matter in issue stands resolved. For example, an order striking out defence of
a tenant under a relevant Rent Act, or an order refusing an adjournment is not a decree as they do not
determine the right of a party conclusively. An interlocutory order which does not finally determine the
rights of parties is not considered as a decree. On the other hand, out of several properties in issue in a suit,
the court may make a conclusive determination about the ownership of a particular property. Such a
conclusive determination would be a decree even though it does not dispose off the suit completely. The
Calcutta High Court in Narayan Chandra v. Pratirodh Sahini, held that the determination should be final
and conclusive regarding the court which passes it.
What is a Judgment ? Under Section 2(9) of the Code, Judgment is defined as the statement given by
the Judge on the grounds of a decree or an order. It refers to what the judge observes regarding all the
issues in matter and the decision on each of the issues. Hence, every judgment consists of facts, evidence,
findings etc. and the conclusion made by the court. In simple terms, a judgement is the reasoning given by
the judge as to why the ‘decree’ was given which explains the legal reasoning that formed the basis for the
decree, along with the citation of the relevant case laws, arguments by the counsels, and the conclusions
reached by the Court. It forms the concluding part of a civil suit and it determines the rights and liabilities
of the parties to the suit.
“Judgment – A Judicial determination putting an end to the action by any award or redress to one
party or discharge of the other as the case may be.” Rule 3 of Order 20 of the code states that the
judgment should be signed and dated by the judge while declaring it in the open court. It further gives
provisions that once signed by the Judge, the Judgment cannot be amended or altered afterwards, except to
correct the clerical or arithmetical errors caused due to accidental slips or omissions, as mentioned in
section 152 of the Code or further during the review.
Essential elements of Judgment: A judgment should possess the essentials of a case, reasoning and basic
contention on which it is delivered or the grounds of the decision. Judgment of the courts other than that of
the Small Causes Court – Rule 4 (2) of Order 20
a) A concise statement of the case
b) The points of determination
c) The decision of the court and
d) The reason for such decision by the court
Judgment of the Small Causes Court
a) The points for determination and
b) The decision thereon
Order: The term Order has been defined under Section 2(14) of the Code as the formal expression of
any decision of a civil court which is not a decree.
Essential elements of order are as follows:
 It should be a formal expression of any decision.
 The formal expression should not be a decree.
 The decision to be pronounced by a civil court.
Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of a court is
founded on the objective considerations and as such judicial order must contain a discussion of the
question at issue and the reasons which prevailed the court which led to the passing of the order.
Orders are of two kinds:
Appealable orders – Orders against which an appeal lies.
Non appealable orders – Orders against which no appeal lies.
Similarly, there are two classes of orders:
Final orders – An order that disposes of all of the claims and adjudicates the rights and liabilities of all the
parties in the suit.
Interlocutory orders; Interlocutory order only settles an intervening matter relating to the cause. Such
orders are made to secure some end and purpose necessary which are essential for the progress of case. In
simple terms, a temporary order issued during the course of litigation is called Interlocutory order. Also
known as the Interim order, is the decision of the court which does not deal with the finality of the case but
rather settles a subordinate issue relating to the main subject matter.
Judgment Decree
1 Judgment is defined under Section 2(9) of the Decree is defined under Section 2(2) of Civil
Civil Procedure code, 1908 Procedure code, 1908
2 Judgement means statement given by a Judge Decree is an adjudication conclusively
of the grounds of decree or order. determining the rights of the parties with regards
to all or any of the matter in the controversy.
3 It is not necessary that there should be a It is necessary that there must be formal
formal expression of order in the judgement expression of the decree
4 Judgement states preciuesly the relief granted. Decree must determine the rights of the parties
5 Judgement contains the grounds of decree. Decree follows the judgment.
6 Judgment may be passed in civil suits as well Decree is passed in a civil suit.
as in criminal cases.
7 Judgment is not capable of execution. Decree is capable of execution.
Judgment Decree
Decree Order
1 Section 2(2) of the Code of Civil Procedure Section 2(14) of the CPC defines “Order”
defines “Decree”
2 “Decree” means the formal expression of an According to Section 2(14) of the said Code,
adjudication which, so far as regards the Court “order” means the formal expression of any
expressing it, conclusively determines the decision of a Civil Court which is not a decree.
rights of the parties with regard to all or any
of the matters in controversy in the suit and
may be either preliminary or final.
3 Decree can only be passed in a suit which An order may originate from a suit by
commenced by presentation of a plaint. presentation of a plaint or may arise from a
proceeding commenced by a petition or an
application.
4 Decree may be preliminary or final or partly An order cannot be a preliminary order.
preliminary and partly final.
5 Every decree is appealable Every order is not appealable
Decree Order
==========================================
Public interest Litigation (PIL) means litigation filed in a court of law, for the protection of “Public
Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the
interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of
law.
What is PIL and how does it work?
In simple terms, a PIL is a petition that an individual or a non-government organisation or citizen groups,
can file in the court seeking justice in an issue that has a larger public interest. It aims at giving common
people an access to the judiciary to obtain legal redress for a greater cause.
How much does it cost to file a PIL?
The court fee for filing PIL that is a writ petition under Article 32 of the constitution is generally Rs. 500
per petitioner. Additionally, the prices on documentation (printing, photocopying, etc.) would have to be
acquired, which are usually in the range of a few thousand rupees.
Some of the matters which are entertained under PIL are:
o Bonded Labour matters

o Neglected Children
o Non-payment of minimum wages to workers and exploitation of casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological balance
o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements
The seeds of the concept of public interest litigation were initially sown in India by Justice Krishna
Iyer, in 1976 in Mumbai Kamagar Sabha vs. Abdul Thai.
The first reported case of PIL was Hussainara Khatoon vs. State of Bihar (1979) that focused on
the inhuman conditions of prisons and under trial prisoners that led to the release of more than
40,000 under trial prisoners.
Right to speedy justice emerged as a basic fundamental right which had been denied to these
prisoners. The same set pattern was adopted in subsequent cases.
==========================================
Zero Fir is the mode of lodging FIR in any police station irrespective of the offense committed in
that area or any other area. There is no restriction over the informant to lodge zero FIR. Zero FIR
means that one can file an FIR in any police station, that is, irrespective of the place of incident or
jurisdiction. The same can later be transferred to the police station having jurisdiction for the
investigation to begin.
Police officers failing to observe the registration of Zero FIR are subject to prosecution under IPC
Section 166A and departmental action. In the case of certain incidents, the police has to start acting
immediately. They have to collect samples, get information from eyewitnesses, etc. At these times,
the police cannot excuse themselves claiming that the case does not fall under their jurisdiction. This
will hamper the objective of the police force to maintain law and order. Anyone who is in urgent
need of help is thus spared the hassles of making rounds to different police stations to get the
complaint registered.
“Dehati Nalishi” can be termed to be the first information given to the police. ... Thereafter, the
police lodged a formal First Information Report (FIR), investigated the matter and recorded evidence of
the witnesses.
What is difference between complaint and FIR?

Complaint refers to an appeal made to the magistrate, comprising an allegation that a crime has taken
place. FIR implies the complaint registered with the police by the plaintiff or any other person having
knowledge of the cognizable offence.
BASIS FOR
COMPLAINT FIR (FIRST INFORMATION REPORT)
COMPARISON
Meaning Complaint refers to an appeal made FIR implies the complaint registered with
to the magistrate, comprising an the police by the plaintiff or any other
allegation that a crime has taken place. person having knowledge of the cognizable
offence.
Format No prescribed format Prescribed format

BASIS FOR
COMPARISON
Made to Metropolitan Magistrate Police Officer
Offence Cognizable and Non-cognizable Cognizable offence only

offence
Who can submit? Any person subject to certain Any person such as the aggrieved party or
exceptions. witness.
BASIS FOR
COMPARISON
==========================================
The summon is a lawful file that contains an order for the parties engaged in a case to appear or present
any file or object before the judge. It could be understood just as a legalized file offered to a party in a
case, such as a defendant or a witness.
Summon is a written file that is duplicated and signed by the governing major of the relevant court or an
officer designated by the high law court. The summons is delivered to the suspect by a law enforcement
officer, a court official, or by some civic employee. The summon referred to the observer, is served
by registered mail, with the witness signing the acknowledgment letter upon receipt of the summon.
The warrant is a written authorization from a judge or magistrate that authorizes a Law enforcement
officer to perform specified conduct that could be considered criminal because it violates individuals’ basic
rights. The warrant is also used to capture someone, search their home, take their belongings, or conduct
out any other action that is essential to preserve the rule of the law.
A warrant is written in a specific format, signed by the sovereign officer, stamped with the court’s seal. It
includes the name and designation of the officer who will carry it out, and the Full name and a little info of
the individual who will be arrested. It also states the offense that has been charged.
BASIS FOR
Summon Warrant
COMPARISON
A lawful instruction allotted by court the warrant is a court-issued authorization tha

Meaning of both
authority to the suspect or observer in a allows law enforcement officials to undertake an ac
terms
legal action is known as a summons. that is not enclosed by their authority.
A command to be present in the court or Authorization for law enforcement officials t

What does it have
present a file or other item in the law court. capture and bring the suspect in front of the judge.
Issued in the name

the defendant or a witness, Officer of the law
of
To inform the individual of their legal To call those who have disobeyed the summons an
Objective
responsibility to be present in the court. failed to appear in court.
A judge may turn a summon case into a It is not possible to transform a warrant case into
Conversion
warrant. Summon.
BASIS FOR
Summon Warrant
COMPARISON
Main Differences Between Summon and Warrant

 The CCP establishes 2 approaches aimed at the trial of a warrant case by Magistrates, one for
cases based on a report by a law enforcement officer and the other for cases based on other
grounds. However, whether based on a report by a law enforcement officer or a complaint, only
one procedure was followed in the hearing of a summons case.
 The process for summons cases is easier and faster. While the process for procurement of an
official warrant is more difficult and time-consuming. Warrant cases deal with more serious
offenses than summons cases.
 The accused in any warrant instance has many opportunities to re-check the trial observers. He
only has one opportunity to re-check the trial observers in any summons case.
 Under the Code, the Magistrate always has the authority to transform a summon instance to a
warrant instance. A warrant case, can not be turned into a summons case.
 In any summon situation, the suspect could file a plea of guilty by mail without his/her presence in
front of the Magistrate after the summons is issued.
==========================================
Any surviving male or female who would have been a heir of the last absolute owner had he been alive
at that time was called a reversioner, who was entitled to succeed the property after the death of the
limited owner (widow). Those reversioners who were entitled to succeed immediately after the (widow)
limited owner died were the next or presumptive reversioners and those who were to succeed other than
were referred to as remote or contingent reversioners. No privity of estate was required to be present
between these two types of reversioners. So long as the limited owner is alive, none of the reversioners
have any vested interest in the estate. It cannot be said that any of the reversioners have personal or
individual tangible right over any specified part of the property. Reversioners interest is expectant on the
death of the limited owner. In this way it is spas successionis within the meaning of Section 6 of
Transfer of Property Act.
Reversioners had the following rights during the lifetime of limited owner—
(i) A suit could be brought by them to restrain the limited owner from making an improper disposition.
(ii) A declaration could be given by them that any alienation made by the limited owner was not valid after
the lifetime of the limited owner.
(iii) If any grant by will was prejudicial to the interest of the reversioners, then he could oppose the grant
of probate,
(iv) Where a widow claimed to be absolute owner of the woman’s estate, reversioners could declare or file
a suit for declaration that she was only a limited owner of the estate.
(v) A suit could also be filed by them against the trespassers of the woman’s estate or a suit could also be
filed against the persons claiming adverse possession for the declaration to the effect that such possession
was not binding upon them.
However a reversioner could not institute a suit for a declaration that he was the next reversioner during
the lifetime of the widow.
==========================================
News item dated 30/10/2021: Case title - Durgesh Tripathi @ Ram v. State of U.P. and Another
35-year-old widow lady must understand the far-reaching repercussions of having premarital sex
with an unknown person, the Allahabad High Court recently granted bail to a man accused of
establishing a physical relationship with her on the false pretext of marriage. The Bench of Justice
Rahul Chaturvedi also underscored that the victim had declined herself from any medical examination so
as to ascertain the allegations of rape upon her.
Matter in brief: As per the FIR, after the demise of the husband of the victim/widow in 2016, she
developed a certain amount of intimacy with the appellant/accused and fell in love with him.Allegedly,
the appellant, on the false pretext of marrying her, established a physical relationship with her, which
lasted up to two years without any resistance or objection from her. However, since the appellant
wriggled out from his promise to marry her, and started abusing and humiliating her, and also extended
threats for her life, she lodged the FIR against him alleging the offence of rape. In pursuance of the FIR
registered against him, the accused/appellant was booked under Sections 376, 504, 506 I.P.C., and
Section 3(2)5 of the SC/ST Act. Since the Special Judge, SC/ST Act, Kanpur Nagar had rejected his bail
plea, the accused/appellant moved the High Court challenging the order of the lower court.
Arguments put forth:
The Counsel for the appellant/accused submitted that in her statement u/s 164 Cr.P.C., the victim
had admitted and reiterated the version of the F.I.R., but she had declined to admit herself for
medical examination, so as to establish the fact of rape upon her as alleged in the F.I.R. He also
submitted that the appellant had been languishing in jail since 06.12.2020.
On the other hand, the counsel for the opposite party no.2/widow, argued that exploiting the
condition of a destitute widow lady, a false promise was extended by the appellant and after
winning over her confidence, he had mercilessly ravished her for two good years and thereafter
ousted her from his life.
Court's order:
After hearing rival submissions of both the parties, the Court was of the opinion that being a widow,
who is a 35-year-old woman, she must understand the far-reaching repercussions of premarital sex with
an unknown person. 'Besides this, the victim has declined herself from any medical examination so as
to ascertain the factum of rape upon her,' the Court further added. Keeping in view the nature of the
offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the
period of detention already undergone by the appellant, and also without expressing any opinion
on merits of the case, the Court, in the end, found it to be a fit case for grant of bail and granted
bail to the appellant.
Section 14 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989,
Special Court.—For the purpose of providing for speedy trial, the State Government shall, with the
concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each
district a Court of Session to be a Special Court to try the offences under this Act.
Section 164 in The Code Of Criminal Procedure, 1973, Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case,
record any confession or statement made to him in the course of an investigation under this Chapter or
under any other law for the time being in force, or at any time afterwards before the commencement of the
inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a
Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is
not bound to make a confession and that, if he does so, it may be used as evidence against him; and the
Magistrate shall not record any such confession unless, upon questioning the person making it, he has
reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that
he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in
police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the
examination of an accused person and shall be signed by the person making the confession; and the
Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained
to (name) that he is not bound to make a confession and that, if he does so, any confession he may make
may be used as evidence against him and I believe that this confession was voluntarily made. It was taken
in my presence and hearing, and was read over to the person making it and admitted by him to be correct,
and it contains a full and true account of the statement made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have power to administer oath to the person whose
statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate
by whom the case is to be inquired into or tried.

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with
imprisonment of either description for a term which shall not be less than seven years but which may be
for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped
is his own wife and is not under twelve years of age, in which cases, he shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven years.
(2) Whoever,—
appointed; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his
custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by
or under any law for the time being in force or of a woman’s or children’s institution takes advantage of
his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less
than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for
adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or
more in a group of persons acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s
or children’s institution” means an institution, whether called an orphanage or a home for neglected
woman or children or a widows’ home or by any other name, which is established and maintained for the
reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital
and includes the precincts of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation.]
Section 504 in The Indian Penal Code, Intentional insult with intent to provoke breach of the
peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or
knowing it to be likely that such provocation will cause him to break the public peace, or to commit any
other offence, shall be punished with imprisonment of either description for a term which may extend to
two years, or with fine, or with both.
Section 506 in The Indian Penal Code, Punishment for criminal intimidation.—Whoever commits,
the offence of criminal intimidation shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.
—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or
to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term
which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison-
ment of either description for a term which may extend to seven years, or with fine, or with both.
=========================================
Basically, action in rem is a type of lawsuit brought against a piece of property itself instead of the
owner of a property. ... An action in personam would be a case brought against the owner of the
property. Action in rem can be very effective when someone has a legitimate claim against a piece of
property.
"In rem" means that a lawsuit is being directed solely against a property instead of a person. When
a court makes an in rem decision it makes it regarding the property itself and laws concerning property
regardless of who owns it. ... In rem can be translated as "against the thing" as opposed to action
against the person.
When there is a dispute related to a property title and the rights related to the title, the court will use
action in rem to resolve the dispute. This action determines the property title and its rights both for the
parties in the case and any party that could claim a property interest in the future. Action in rem
determines conclusive rights to a piece of property.
For instance, a party could bring an action in rem case against a ship or its cargo instead of the owner of
the vessel. An action in personam would be a case brought against the owner of the property. Action in
rem can be very effective when someone has a legitimate claim against a piece of property.
How used in a sentence: The bench further clarified that this declaration shall be seen as one operating
in rem and this judgment as one covered by Section 41 of the Indian E
=========================================
What is the purpose of a codicil?

A codicil is a document that amends an existing will, but does not replace it. It allows you to change your
will without making an entirely new will, and must be signed in the exact same way as the will was signed
(although the two witnesses do not have to be the same two people that witnessed the original will).
What is required for a codicil ?
Legal Requirements for a Valid Codicil
It must be in writing. It must be signed by the person making the will. It must be signed and witnessed by
two adults who are not beneficiaries under the codicil.
A “Will” or “Testament” is a legal document by which a person, the testator, expresses wishes as to
how his/her property (movable or immovable) is to be distributed at death, and names one or more
persons, the executor, to manage the estate until its final distribution. Throughout most of the world,
disposal of an estate has been a matter of social custom. Any person of the age of majority and having
“testamentary capacity” (being of sound mind) can make a will. A minor cannot make a Will. If a person is
of unsound mind at the time of making a Will, the Will is not enforceable. A Will is a legal declaration.
Certain formalities must be complied with in order to make a valid Will. Will must be signed and attested,
as required by law. A Will is intended to dispose off property. There must be some property which is being
given to others after the death of the testator.
A Will becomes enforceable only after the death of the testator. It gives absolutely no rights to the legatee
(the person who inherits) until the death of the testator. It has no effect during the lifetime of the testator. A
testator can change his Will, at any time, in any manner he deems fit. A Will, obtained by force, coercion
or undue influence is void as it takes away the free agency of the person. A Will, made under influence of
intoxication or in such a state of body or mind, sufficient to take away free agency of the testator, is void as
well. A Will can be registered, although of a Will is not compulsory, it can be registered with the sub-
registrar. A Will can be made at any time in the life of a person. There is no restriction on how many times
a Will can be made by a testator. However, only the last Will made before his death is enforceable. A Will
has to be executed by the testator, by signing or affixing his thumb impression on it. It should be attested
by two or more witnesses, each of whom should have seen the testator signing the Will. If, at any time, the
testator wishes to withdraw the Will, he can do so.
A Will also can be sealed and kept in safe custody. On the death of the testator, an executor of the Will or a
heir of the deceased testator can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court will grant probate. A probate is a copy
of a Will, certified by the court, and is conclusive evidence that the Will is genuine. If a testator intends to
make a few changes to the Will, without changing the entire Will, he can do so by making a codicil to the
Will. The codicil can be executed in a similar way as the Will. Will or Codicil can be altered or revoked at
any time. In case any objections are raised by any of the heirs, a citation has to be served, calling upon
them to consent. This has to be displayed prominently in the court. If no objection is received, the probate
will be granted. It is only after this, that a Will comes into effect. One can make some provision for a
faithful servant, a nurse, a friend in need of money and so on. Further one can fulfil his spiritual desires
like creating a trust, donating to good causes like orphanages, temples, old age homes, hospitals,
educational institutions, social service organisations etc.
A registered will is kept in the safe custody of the office of the Registry. If an unregistered Will is lost, the
testator’s wish cannot be given effect as it will be difficult to trace the Will. The Supreme Court has
recently held that petition for probate or letters of administration of the Will of a testator must be filed
within three years from the date of death of the testator. No probate is necessary for Christian and Muslim
Wills. Under Muslim law will by Pardanashin woman is also valid. The executor is the most important
person in the will. An executor has a duty to collect and realise the estate of the deceased, pay his debts
and distribute the legacies as mentioned in the Will by the testator. The duty of the executor is to probate
the Will in the manner required as per law.
The court shall grant probate only to an executor who has been named in the Will. Wills can be revoked,
either impliedly or expressly, either by conduct or by a specific document. By conduct, the Will can be
presented to be revoked by the testator. For example, a testator may make bequest of property in his Will
to a person, but he may dispose of the said property even during his life time. This is called implied
revocation. Suppose, the testator makes a bequest of a vacant land in his Will, but subsequently the testator
himself constructs a dwelling house therein, in such circumstance, the Will can be deemed to have been
expressly revoked by the testator. It is best advised to keep a video recording of a will to minimise
potential challenging of will in court of law with respect to its genuineness. In cases where a will has not
been made then the law of intestate succession kicks in and his property is acquired by his heirs as per
intestate law. A will is a legal declaration for a voluntary posthumous disposition of property. The law
relating to wills may be found in the Indian Succession Act, 1925 where Section 58 states the law therein
applies to everyone except Muslims.
The essential characteristics of a will are:
 There must be an intention for the testament to take effect after the testator’s death.
 It is the a legal declaration of intention with respect to property (the declaration is not fulfilled if the forms
and formalities prescribed by the law and not fulfilled).
 The declaration with respect to the property must involve a disposition of property and not the mere
appointment of a successor.
In absence of an executor, an administrator can be appointed by a competent authority (to administer the
deceased person(s) estate). The burden of proving that the maker of a will did so freely and when capable
of making the will is upon the individual who propounds the will. If a person is normally insane but has
fits of insanity at times and a will is made when sound of mind then the will would be valid. Any person
who is capable of holding property can be a will’s beneficiary. This means that even a corporation, a
juristic person, minors and someone of unsound mind can be a beneficiary of a will. The property in
question must be self acquired property. As concerns ancestral property, Section 30 of the Hindu
Succession Act allows a Hindu to give away in his will his share in Coparcenary property which is
something that a Hindu is in other circumstances not permitted to do. So far as immovable properties are
concerned the making of Wills will be governed by the law of the place where property is situated.
However, this proposition is important only if there are properties outside India. So far as movable
properties are concerned it will be governed by the law of testator’s domicile.
Unprivileged and Privileged Wills:
Privileged wills are those that can be made my members of the armed forces employed in an expedition or
engaged in actual warfare and can be made in oral form as well. A relaxation of formalities has been
envisaged for them considering the inherent dangers and possibility of sudden death coupled with the lack
of time and means to deliberately frame written wills. Unprivileged wills are the wills that can be created
by every person other than those who can create a privileged will. For a privileged will to be executed it is
firstly necessary that it be in writing. The law requires no particular form except that the words must be
intelligible and clear. The testator is required to sign or affix his mark on the will or have it signed by
another person in his presence or on his direction. Two or more witnesses to the fact of the testator’s assent
being expressed by placing of a mark on the will are required. There is no requirement in law for a will to
be on a stamp paper. Any attempt by a person propounding a will which was made by oral means has to be
strictly proved on very satisfactory evidence. If an instrument purporting to be a Privileged Will is written
wholly or in part by another person and is not signed by the testator, it shall be deemed to be his Will, if it
is shown that it was written by the testator’s directions or was recognised by him as his Will. If a soldier,
airman or mariner has written instructions for the preparation of his Will, but has not died before it could
be prepared and executed, the instructions shall be deemed to be his Will and if such a person has, in the
presence of two witnesses, given verbal instructions for the preparation of his Will, and such instructions
have been reduced to writing in his lifetime, but he has died before the Will could be prepared and
executed, then such instructions are to be considered to constitute his Will, although they may not have
been reduced into writing in his presence, nor read over to him. A soldier, airman or mariner may make a
Will by word of mouth by declaring his intention before two witnesses present at the same time, but such a
Will shall become null at the expiration of one month after the testator, being still alive, has ceased to be
entitled to make a privileged Will.
An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing
declaring an intention to revoke the same and execute in the manner in which an unprivileged Will can be
executed under the Act or by burning, tearing or destroying of the same by the testator or by some other
person in his presence and by his directions with the intention of revoking the same. Mere loss of a Will
does not operate as a revocation but where a Will is destroyed by the testator or with his privacy or
approbation, it is to be deemed to have been revoked. No obliteration, interlineations or other alternation
made in any unprivileged Will after the execution thereof, can have any effect except so far as the words or
meaning of the Will have been thereby rendered illegible or indiscernible, unless such alteration has been
executed in the same manner as is required for the execution of the Will. A Will, altered, shall be deemed
to be duly executed if the signature of the testator and the subscription of witnesses is made in the margin
or some other part of the Will opposite or near to such alternation, or at the foot or end or opposite to a
memorandum referring to such alteration, and written at the end or some other part of the Will. An
unprivileged Will that has once been validly revoked cannot be revived otherwise than by the re –
execution thereon with the prescribed formalities, or by a codicil executed with such formalities and
showing an intention to revive the same.
When a Will or a codicil, which has been partly revoked and afterwards wholly revoked, such revival
cannot extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an
intention to the contrary is shown by the Will or codicil. In case of Hindus, Buddhists, Sikhs and Jains, a
Valid Will can be made orally and no formalities for execution of a Will are required. This rule, does not
apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or after the 1st of September, 1870, within the
territories which were subject to the Provincial Government of Bengal or in the local limits of the ordinary
civil jurisdiction of the High Courts of Judicature at Madras and Bombay, and also, to all such Wills and
codicils made outside those territories or limits so far as they related to immovable property situated within
these territories or limits. The execution of such Wills was previously regulated by the Hindu Wills Act.
Section 70 in The Indian Succession Act, 1925, Revocation of unprivileged Will or codicil.—No
unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by
another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the
manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing,
or otherwise destroying the same by the testator or by some person in his presence and by his direction
with the intention of revoking the same. Illustrations
(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to
revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a
privileged Will, which purports to revoke his unprivileged Will. This is a revocation.
=========================================
What is Coram mean?
in the presence of [Latin, Before; in the presence of.] The term coram is used in phrases that refer to the
appearance of a person before another individual or a group.
The writ of coram nobis (also known as writ of error coram nobis, writ of coram vobis, or writ of
error coram vobis) is a legal order allowing a court to correct its original judgment upon discovery
of a fundamental error that did not appear in the records of the original judgment's proceedings and
would have prevented the judgment from being pronounced. The term "coram nobis" is Latin for
"before us" (i.e., the king) and the meaning of its full form, quae coram nobis resident, is "which [things]
remain in our presence". The writ of coram nobis originated in the courts of common law in the English
legal system during the sixteenth century.
=========================================
Compoundable offences are those offences where, the complainant (one who has filed the case, i.e.
the victim), enter into a compromise, and agrees to have the charges dropped against the
accused. However, such a compromise should be a "Bonafide," and not for any consideration to which the
complainant is not entitled to.
Section 320 of the CrPC looks at the compounding of offences. Compoundable offences are less serious
criminal offences and are of two different types mentioned in tables in Section 320 of the Criminal
Procedure Code.
1. Court permission is not required: These are the offences, compounding of which do not require prior
permission of the court.
Examples of these offences are:
 adultery,
 causing hurt,
 defamation,
 criminal trespass, etc.
2. Court permission is required: These are the offences, compounding of which require prior permission
of the court.
Examples of such offences are:

theft,

criminal breach of trust,

voluntarily causing grievous hurt,

assault on a woman with the intention to outrage her modesty,

dishonest misappropriation of property amongst others, etc.
=========================================
Pro bono publico (English: "for the public good"; usually shortened to pro bono) is a Latin phrase for
professional work undertaken voluntarily and without payment. The term typically refers to provision of
legal services by legal professionals for people who are unable to afford them.
What is meant by Probono?
(relating to work that is done, especially by a lawyer) without asking for payment: pro bono
cases/lawyers/work. He takes on some charity cases pro bono.
What is Probono service?
“Pro bono publico - 'for the public good' - not just in the sense of professional work undertaken voluntarily
and without payment, but in the sense of a public service to those who are unable to afford the services of
skilled professionals. It is a noble and necessary calling for all attorneys.”
=========================================
What recuse means?
transitive verb. : to disqualify (oneself) as judge in a particular case broadly : to remove (oneself) from
participation to avoid a conflict of interest.
What is it called when a judge removes himself from a case?
Judicial disqualification, also referred to as recusal, is the act of abstaining from participation in an official
action such as a legal proceeding due to a conflict of interest of the presiding court official or
administrative officer.
What does judge recuse mean?
Judges recuse themselves when they take no part in deciding cases that they would otherwise help decide.
=========================================
"Human progress is neither automatic nor inevitable, every step towards the goal of Justice requires
sacrifice, suffering and struggle, the tireless exertions and passionate concern of dedicated
individuals" - Martin Luther King
=========================================
'Do not look back, look forward! Infinite enthusiasm, infinite daring and infinite patience, then alone
can great deeds be achieved.'5. Swami Vivekananda also said : 'Arise, awake, and stop not till the
goal is reached'.
=========================================
News item dated 15/11/2021: Criminal Appeal Cannot Be Dismissed As Infructuous Merely Because
Appellant Served Out Sentence: Supreme Court.
The Supreme Court observed that an appeal against conviction cannot be treated as infructuous (pointless
or unnecessary. How to use it in a sentence ? "as the Supreme Court had already held that the
court order was just and proper, all the appeals against it had become infructuous" ) merely for the
reason that the convicted appellant had served out the sentence awarded by the Trial Court. Merely for
execution of the sentence, an appeal against conviction cannot be treated as infructuous, the bench
comprising Justices Dinesh Maheshwari and Vikram Nath said. In this case, a regular criminal appeal
filed by the appellant-convict was dismissed by the Punjab and Haryana High Court on the ground that no
one appeared for the appellant. The Court had also accepted the submission of the State counsel that the
appeal was rendered infructuous for the reason that the appellant had served out the sentence. [The
accused- appellant was convicted under Section 18 of The Narcotic Drugs and Psychotropic
Substances Act, 1985, and the sentence awarded was only of five months' imprisonment with fine of
Rs.3,000/-. ]
Before the Apex Court, the appellant contended that even at the initial stage of appeal, it was specifically
pointed out before the Court that the appellant had undergone the sentence of imprisonment and had
deposited the fine imposed but, he was nevertheless seeking to assail (criticize strongly) his conviction.
An appeal against conviction could not have been treated as infructuous merely for the reason that the
convicted appellant had served out the sentence awarded by the Trial Court, it was contended. Agreeing
with this contention, the bench observed: 'Though learned counsel for the respondent has attempted to
support the conviction and sentence of the appellant but could not dispute the position that merely for
execution of the sentence, an appeal against conviction cannot be treated as infructuous.' The court further
added that, since the matter before the High Court was an appeal against conviction, if nobody was present
for the appellant for any reason, the High Court could have taken appropriate steps for representation on
behalf of the appellant. In any case, the appeal could not have been dismissed as infructuous, the court
said. Therefore, setting aside the High Court order, the bench restored the appeal filed by the
appellant before the High Court for consideration on merits.
Case name and Citation: Gurjant Singh vs State of Punjab LL 2021 SC 650
Case no. and Date: CrA 1385-1386 OF 2021 | 13 November 2021
Coram: Justices Dinesh Maheshwari and Vikram Nath
Counsel: AOR Yadav Narender Singh for appellant, Adv S.S. Boparai for respondent
=========================================
News item dated 15/11/2021: Vehicle Manufacturer Cannot Be Held Liable For Deficiency In
Service By Dealer/Authorized Service Centre In Repair : Supreme Court.
The Supreme Court observed that a vehicle manufacturer cannot be held liable for any deficiency in
service by the dealer or the authorized centre in rendering assistance for repairs of the vehicle. In this case,
the complainant purchased a 'Honda City' Car in the year 1999. In 2010, the car suffered damage in
an accident and was taken to the authorized service centre for repairs. Alleging deficiency on part of
the Manufacturer as well as the dealer and the service centre, a complaint was filed before District Forum.
The District Forum allowed the complaint but held that the manufacturer cannot be held liable since there
was no claim that the vehicle had some manufacturing defect. This finding was affirmed by the State
Commission (SCDRC). However, the National Consumer Disputes Redressal Commission, allowed
the revision petition filed by the complainant and directed the manufacturer to provide a brand new
Honda City car to the complainants on payment of a nominal sum of Rs.2,50,000/-.
In appeal, the bench agreed with the submission made by the manufacturer that there is not an iota
of material that the accident occurred as a result of any manufacturing defect.
If there be any deficiency in service by the dealer or the authorized centre in rendering assistance for
repairs of the vehicle, the manufacturer of the vehicle cannot be held liable, the court said while referring
to a recent judgment in TATA Motors Ltd. v. Antonio Paulo Vaz. The court observed that the District
Forum was justified in making only the dealer and the authorized centre, liable for the deficiency on their
part. 'These findings were rightly affirmed by the State Commission and the National Commission ought
not to have passed direction putting the burden on the appellant and asking the appellant to provide a brand
new vehicle as a 'goodwill gesture'.', the court said while allowing the appeal.
Case name and Citation: Honda Cars India Limited vs Sudesh Berry | LL 2021 SC 649
Case no. and Date: SLP(C) 11986/2020 | 12 November 2021
Coram: Justices UU Lalit and S. Ravindra Bhat
Counsel: Adv Jagdev Singh for petitioner
News item dated 18/11/2021: Sessions Judge Physically Assaulted In Court By Policemen: Patna
High Court Takes Suo Moto Cognisance.
In an unprecedented occurrence, the Patna High Court has taken suo moto cognisance of an act of police
violence against an Additional District and Sessions Judge, Jhanjharpur. The court has on its own motion
taken note of this upon a letter being received from the District and Sessions Judge, Madhubani, about the
incident that has happened in the Sub Division of Madhubani at Jhanjharpur.
The letter by the District & Sessions Judge states that ADJ Avinash Kumar has been physically attacked
and assaulted by two policemen: Gopal Krishna, the Station House Officer, Ghoghardiha and Abhimanyu
Kumar Sharma, Sub-Inspector of Police, Ghoghardiha. According to the letter, the two accused policemen
forcibly entered the Chamber of Additional District & Sessions Judge and started abusing him. When the
judge protested, they manhandled and physically assaulted him, and even took out their service revolvers
to attack the judge. The letter of District & Sessions Judge reports that a few lawyers and court employees
reached the spot on time, saving the ADJ from further harm. After the special hearing, in its oral order, the
court has expressed shock about the gravity of such an attack on the judge, as reported in the letter.
"Prima facie, it appears that this episode puts the independence of the judiciary in jeopardy. We, thus,
deem it fit to issue notice to the respondents no. 2 to 5 i.e., the Chief Secretary, Government of Bihar,
Patna, the Director-General of Police, Bihar, the Principal Secretary, Home Department, Government of
Bihar, Patna and the Superintendent of Police, Madhubani the court noted in its order.
The matter has been listed for hearing on 29th November, and the Director-General of Police, Bihar is
directed to remain present on the date of hearing.
"In view of the magnitude and enormity of the issues involved, the Director-General of Police, Bihar is
directed to remain present on the next date of hearing."
Due to the sensitivity of the issue, the DGP has also been asked to file a status report in sealed cover.
=========================================
News item dated 18/11/2021: Judges Should Not Strain Plain Words Of Statute To Destroy
Legislative Intent : Justice Ravindra Bhat On 'Skin To Skin' Judgment In POCSO Case.
The HC view trivialized and legitimized unacceptable behaviour towards a child, the judgment of Justice
Bhat said.
"The Supreme Court on Thursday set aside the controversial judgment of the Bombay HC which held that
'skin-to-skin' contact is necessary for the offence of sexual assault under Protection of Children from
Sexual Offences(POCSO) Act. A bench comprising Justice Uday Umesh Lalit, Justice S Ravindra Bhat
and Justice Bela M Trivedi pronounced the judgment in the appeals filed by the Attorney General of India,
National Commission for Women and the State of Maharashtra against the judgment of the High
Court.Justice Ravindra Bhat delivered a separate, concurring opinion in the case where he points at the
need to interpret the statute in the context of the circumstances that resulted in its birth. The judgement
relies on upon Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. & Ors. which
had emphasized the need to contextualize the provisions of any law which requires interpretation, even
while focussing on its text.The judgement notes that the issue at hand would be an apt case for the
application of 'mischief rule' of interpretation of statutes. It stresses that courts always have to interpret the
law so as to suppress the mischief and advance the remedy. In this light, the judgement notes that the
interpretation adopted by the High Court not only limits the operation of the law, but tends to subvert the
intention too. 'It has the effect of 'inventions and evasions' meant to continue the mischief which
Parliament wished to avoid,' it notes. Briefly tracing the history of the law which existed before the
POCSO Act in order to gather the mischief which Parliament wished to eliminate, the judgement notes:
'One cannot be unmindful of the circumstances in which these provisions were enacted by a colonial
power, at a time, when women's agency itself was unacknowledged, or had limited recognition. Further,
women in India were traditionally - during the time of enactment of IPC, in the mid nineteenth century -
subordinated to the care of their fathers, or their husbands, or other male relatives. They had no share in
immovable property; notions of gender equality were unheard of, or not permitted. Women had no right to
vote. Quite naturally, the dignity of women or indeed their autonomy, was not provided for.' (Para 9)The
judgement notes that it was the advent of the Constitution and provisions like Art.14, Art.15 (1) and Art.15
(3) that enabled the state to enact special provisions for the benefit of children and women. Given this
historical backdrop, the judgement notes that laws like POCSO were enacted to overcome the 'limitations
in law dealing with acts that undermined the dignity and autonomy of women and children' and only by
being mindful of mischief rule, the background, and history leading up to the enactment of the legislation
that S.7 of the POCSO Act be interpreted.Upon perusing the dictionary meanings of the terms 'touch' and
'physical contact', the judgment notes that:' 'Contact' on the other hand, which is used in the second limb,
has a wider connotation; it encompasses - but is not always limited to – 'touch'. While it is not immediately
apparent why the term 'physical contact' has been used in the second limb, its use in conjunction with 'any
other act' (controlled by the overarching expression 'with sexual intent'), indicates that 'physical contact'
means something which is of wider import than touching. Viewed so, physical contact without penetration,
may not necessarily involve touch. (Para 23)It further explains that the Parliamentary intent and emphasis
is that the offending behavior (whether the touch or other act involving physical contact), should be
motivated with sexual intent. (Para 24)Explaining what the term 'sexual intent' would entail, the judgement
notes: 'The circumstances in which touch or physical contact occurs would be determinative of whether it
is motivated by 'sexual intent'. There could be a good explanation for such physical contact which include
the nature of the relationship between the child and the offender, the length of the contact, its
purposefulness; also, if there was a legitimate non-sexual purpose for the contact. Also relevant is where it
takes place and the conduct of the offender before and after such contact. In this regard, it would be useful
to always keep in mind that 'sexual intent' is not defined, but fact-dependent.' (Para 25)The judgement
makes it abundantly clear that S.7 covers both direct and indirect touch and notes that 'the reasoning in the
High Court's judgment quite insensitively trivializes - indeed legitimizes -an entire range of unacceptable
behaviour which undermines a child's dignity and autonomy, through unwanted intrusions. 'Justice Bhat
concludes his separate, concurring opinion by quoting Justice Benjamin Cardozo from 'The Nature of
Judicial Process'- the great tides and current which engulf the rest of men do not turn aside in their course
and pass the judges by- and holds: 'It is, therefore, no part of any judge's duty ..." to strain the plain words
of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that
children desperately need the assurance of a law designed to protect their autonomy and dignity, as
POCSO does."
Controversial Judgement of the Bombay High Court

The Nagpur Bench of the Bombay High Court has held that groping a child's breasts without 'skin-to-skin
contact' would amount to molestation under the Indian Penal Code but not the graver offence of 'sexual
assault' under the Protection of Children from Sexual Offenses (POCSO) Act. A single bench of Justice
Pushpa Ganediwala made the observation while modifying the order a sessions court that held a 39-year-
old man guilty of sexual assault for groping a 12- year- old- girl and removing her salwar. The court has
now sentenced the man under Section 354 IPC (outraging a woman's modesty) to one year imprisonment
for the minor offence(Satish v State of Maharashtra). Sexual assault under section 8 of the POCSO Act
would attract a minimum punishment of three years as compared to outraging of a woman's modesty under
section 354 of the IPC, which attracts a minimum punishment of only a year. Both the offenses carry a
maximum imprisonment of five years.
=========================================
News item dated 21/11/2021: “Police Officials To Face Action If Arrest Procedure Under Sec 41A
CrPC Arnesh Kumar Guidelines Are Violated : Telangana High Court".
Recently, Telangana High Court granted liberty to an accused to initiate proceedings against police
officials if the procedure for arrest under Section 41A CrPC is violated. The Court reminded that the police
are duty bound to follow the guidelines laid down by the Supreme Court in the 'Arnesh Kumar' case for
arrest.
So what exactly is Section 41 of CrPc? The Section 41 grants power to a police officer to arrest a
person without an order from a Magistrate and without a warrant. This power is given for what are
called 'cognizable offences'. Such offences which is seen as serious in nature or require immediate
action.
Section 41A Cr PC was inserted in the Criminal Procedure Code – a bid to reform the same as well
as to prevent unnecessary arrests.
Section 41A Cr PC : Notice of appearance before police officer.-- (1) The police officer shall, in all
cases where the arrest of a person is not required under the provisions of sub-section (1) of section
41, issue a notice directing the person against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists that he has committed a
cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the
terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is
of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to
identify himself, the police officer may, subject to such orders as may have been passed by a
competent Court in this behalf, arrest him for the offence mentioned in the notice.
Supreme Court of India

Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014
Bench: Chandramauli Kr. Prasad, Pinaki Chandra Ghose
REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ..... APPELLANT

VERSUS
STATE OF BIHAR & ANR. .... RESPONDENTS
The petitioner apprehends his arrest in a case under Section 498-A of the Indian Penal Code, 1860
(hereinafter called as IPC) and Section 4 of the Dowry Prohibition Act, 1961. The maximum sentence
provided under Section 498-A IPC is imprisonment for a term which may extend to three years and fine
whereas the maximum sentence provided under Section 4 of the Dowry Prohibition Act is two years and
with fine.
Petitioner happens to be the husband of respondent no.2 Sweta Kiran. The marriage between them was
solemnized on 1st July, 2007. His attempt to secure anticipatory bail has failed and hence he has knocked
the door of this Court by way of this Special Leave Petition.
Leave granted.
In sum and substance, allegation levelled by the wife against the appellant is that demand of Rupees eight
lacs, a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law
and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry
another woman. It has been alleged that she was driven out of the matrimonial home due to non- fulfilment
of the demand of dowry.
Denying these allegations, the appellant preferred an application for anticipatory bail which was earlier
rejected by the learned Sessions Judge and thereafter by the High Court.
There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to
combat the menace of harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride
amongst the provisions that are used as weapons rather than shield by disgruntled wives. The
simplest way to harass is to get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters
living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National
Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011.
Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts
that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6%
out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts
for 4.5% of total crimes committed under different sections of penal code, more than any other
crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as
high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as
3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in
acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the
police. There is a battle between the law makers and the police and it seems that police has not learnt
its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image
despite six decades of independence, it is largely considered as a tool of harassment, oppression and
surely not considered a friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded desired result. Power to
arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only
this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest
first and then proceed with the rest is despicable. It has become a handy tool to the police officers
who lack sensitivity or act with oblique motive.
If the provisions of Section 41, Cr.PC which authorises the police officer to arrest an accused
without an order from a Magistrate and without a warrant are scrupulously (in a very careful and
thorough way) enforced, the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant of anticipatory bail
will substantially reduce. We would like to emphasise that the practice of mechanically reproducing
in the case diary all or most of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.
Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily
and Magistrate do not authorise detention casually and mechanically. In order to ensure what we
have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case
under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41, Cr.PC;
Section 498A in The Indian Penal Code, Husband or relative of husband of a woman subjecting her
to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend to three years
and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or
to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.
All police officers be provided with a check list containing specified sub- clauses under Section 41(1)
(b)(ii);
The police officer shall forward the check list duly filed and furnish the reasons and materials which
necessitated the arrest, while forwarding/producing the accused before the Magistrate for further
detention;
The Magistrate while authorising detention of the accused shall peruse the report furnished by the
police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will
authorise detention;
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the
date of the institution of the case with a copy to the Magistrate which may be extended by the
Superintendent of police of the district for the reasons to be recorded in writing;
Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks
from the date of institution of the case, which may be extended by the Superintendent of Police of the
District for the reasons to be recorded in writing;
Failure to comply with the directions aforesaid shall apart from rendering the police officers
concerned liable for departmental action, they shall also be liable to be punished for contempt of
court to be instituted before High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned
shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-
A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where
offence is punishable with imprisonment for a term which may be less than seven years or which
may extend to seven years; whether with or without fine.
=========================================
News item dated 24/11/2021: You Misinterpreted Our Order : Supreme Court To Allahabad HC
For Creating Only Sessions Courts For Cases Against MP/MLAs.
The Supreme Court on Wednesday orally remarked that the Allahabad High Court misinterpreted the Top
Court's order by not creating Magisterial Courts for trying cases against MPs/MLAs and by designating
only Sessions Courts for such purposes.
A bench comprising the Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice Surya
Kant was hearing the applications filed by SP leader Azam Khan challenging the notification dated
16.08.209 issued by the Allahabad High Court by which cases triable by Magistrates are transferred to the
Special Court headed by an officer of the rank of Additional Sessions Judge.
Responding to a query raised by the bench, the counsel appearing for the Allahabad High Court submitted
that nearly 13,000 cases are pending in the State of Uttar Pradesh against sitting and former MPs and
MLAs and 63 Special Courts have been created to try them. The Special Courts are created at the Sessions
Level and not at the Magistrate level. When the bench asked the reason for this, the counsel replied that it
was done as per the orders passed by the Supreme Court.
"Don't misinterpret our orders. We know what our orders are. We allowed creation of Magisterial Courts
also as required", the Chief Justice of India told the High Court's counsel. "You have not created any
special courts and have only put a label to sessions judges! If you don't create Magisterial Courts, and give
the cases to in-charge Sessions Judge, for how many years the cases will drag on? Was it our intention?",
the CJI asked. "Our order was clear, to constitute as much sessions courts and magisterial courts as
deemed fit", Justice Chandrachud pointed out.
"We just want to say one thing. You have misinterpreted our order", the CJI told the High Court's counsel.
The bench asked the counsel to read the order passed by the Supreme Court on September 16, 2020 in the
Ashwini Upadhyay case.
'There is nothing in the order to indicate that this Court wanted to transfer the cases triable by Magistrates
to Sessions Court by exercising powers under Article 142. On the other hand, there are contrary indications
that this Court wanted the creation of Special Magisterial Courts.', Justice Chandrachud said.
The CJI asked if other states have created Magistrate level court. The amicus curiae in the matter, Senior
Advocate Vijay Hansaria, informed that in States like Madhya Pradesh, Karnataka and West Bengal, there
is one Magistrate designated as the Special Court for cases against MPs/MLAs.
The bench indicated that it will pass directions to the High Courts and States to create Special Magistrate
Courts and to transfer the cases(which are triable by Magistrates) from Sessions Courts to Magistrate
Courts from the stage where the trial is over.
'We are contemplating directing HC to constitute the Magistrate Courts, let the States which have not
created Magistrate Courts, create Magistrate Courts. So far as trial going on in Sessions Courts, we will
transfer them to Magistrate Courts from the stage where they are completed', the CJI said while reserving
orders in the application of Azam Khan.
Earlier, Senior Advocate Kapil Sibal, appearing for Azam Khan, had argued that the transferring of cases
triable by Magistrates to the Sessions Court was in violation of the procedure established by law.
He highlighted the following points :
A direction passed by the Supreme Court under Article 142 cannot be applied in violation of the statutory
jurisdiction conferred by the CrPC.
The transfer of case to Magistrate results in losing of right to appeal before the Sessions Court as provided
under Section 374 CrPC.
This results in discrimination and arbitrariness as an MP from another state is tried before a Magistrate,
while an MP from UP is tried for the same offence before the Sessions Court.
Such a trial will not be in accordance with 'procedure established by law' as contemplated under Article 21
of the Constitution.
Sibal relied on the precedents State of West Bengal v Anwar Ali Sarkar 1952 SCR 284, A.R. Antulay vs
R.S. Nayak to buttress his arguments.
Sibal said that more than the losing of the right to appeal, his emphasis was on the violation of right to
equality.
There is no dispute that Special Courts can be created for a class of offences or offender, but the
jurisdiction must be as conferred by the statute, Sibal argued.
Amicus justifies transfer of cases to Sessions Court. Amicus Curiae Vijay Hansaria has submitted a report
stating that it was not illegal to allow Special Courts at Sessions Level to handle cases triable by
Magistrates. He pointed out that in 2G scam cases and coal block cases, the Supreme Court had transferred
the cases to Special Courts. The Amicus argued that the right to appeal was not lost, as appeal lies to the
High Court from the Sessions Court. Additional Solicitor General SV Raju argued that Magistrate doesn't
have exclusive jurisdiction..."
=========================================
News item dated 20/11/2021: Delhi High Court Grants Interim Injunction To Britannia Against Oral
Care Seller Good Day In Trademark Infringement Suit.
The Delhi High Court has recently granted an ad interim injunction to Britannia Industries against an oral
care seller for allegedly using it's identical trademark 'GOOD DAY’.
Justice Sanjeev Narula was of the prima facie view that Britannia's trademark 'GOOD DAY' has been
acknowledged to be a well-known mark and therefore it will have a right to seek injunction in terms of
Section 29(4) (b) of the Trade Marks Act 1999.
The Court therefore passed ad interim injunction against Good Day Oral Care and others from launching,
selling, manufacturing, advertising, offering for sale or in any manner dealing in goods, bearing the
impugned mark "GOOD DAY" which is similar or deceptively similar to Britannia's trademark "GOOD
DAY".
What are Ex-Parte and Ad-Interim Injunctions, and Why Are They Useful
Procedural law governing civil suits in India allows courts to grant injunctions without hearing the
other side – also known as ex-parte injunctions. If a plaintiff asks a court to grant an ex-parte injunction,
a court will usually hear the plaintiff within 1-3 days from the date of filing of a suit accompanied by an
application for grant of such an injunction. Ex-parte injunctions are usually worded, so that they operate
only till the next date of hearing at which the defendant is given an opportunity to present its case.
Even if the court refuses to grant an ex-parte injunction, it is still possible to press for an ad-interim
injunction. An ad-interim injunction is granted after hearing a defendant and operates only till the
next date of hearing. A temporary or interim injuction restrains a party temporarily from doing the
specified act and can be granted only until the disposal of the suit or until the further orders of the court. ...
It is regulated under the provision of Order 39 of and may be granted at any stage of the suit.
A significant advantage of obtaining an ad-interim injunction (either ex-parte or otherwise) is that it is
generally extended to subsequent hearing dates, unless and until the other side challenges it and succeeds –
which may not happen soon.
=========================================
News item dated 26/11/2021: Attorney General Bats For Regional Court Of Appeals To Reduce
Burden Of Supreme Court.
While delivering his address on the Constitution Day Celebrations at Vigyan Bhavan, the Attorney General
for India KK Venugopal today spoke about the need for creation of Court of Appeals in at least 4 regions
(North, South, West and East) with 15 judges consisting of 3 benches of 3 judges each.
"I would envisage at least 4 regions, North, South, West and East each having a Court of Appeal
with 15 judges consisting of 3 benches of 3 judges each.”
We're adding 60 judges who would be taking over the cases so that the pendency would be cut down to a
very great extent. It would be reduced so that you'll be able to get the cases disposed of within a period of
3 or 4 years. This would mean that the Supreme Court would not require 34 judges which it has
now. Once it is relieved of all this burden of rent control, matrimonial and so on and so on the result of it
is that 15 judges sitting in 3 constitution benches of 5 each would be sufficient to dispose of cases of
Constitutional Nature something or where death sentence is involved or constitutional requirement of
references or so on,' AG said.The Attorney General commenced his speech by saying that over the last
75 years a big question that had been posed was whether the Supreme Court was a Constitutional Court.
He further said that today the Supreme Court had expanded its coverage to cases to include every
single case decided by the High Court as long as there was an error in judgement, the law had not
been stated correctly and that there were serious errors of facts. In this background he said,'Now
this means that so far as the Supreme Court is concerned, it can't truly claim to be a constitutional court.
You have to remember that so far as western Apex Courts are concerned, they have managed their
work in a manner where they are able to dispose of their cases within a period of 2 years. But what
is the real situation so far as India is concerned. We find that in Supreme Court list there are criminal
cases pending from 2008, civil cases pending from 2009 and if its pending in SC for 12 years then one
should consider to account that the cases have come from Trial Courts and High Court's where they have
been pending for 10 years and about 8/10 years in Supreme Court as well.'Relying on the proposal
initiated in 2010, AG said that today there was a need for the Courts of Appeal to absorb all the cases
(matrimonial, rent control, acquisition cases etc) which had not to do with the Constitution or
interpretation of Constitution.'Now in this background it is time to set back in thought as to whether there
is a solution. The solution that was suggested in 2010 onwards is that there should be what is known
as Courts of Appeal. Most of the western countries, not because they are western, but these are common
law countries and we are common law countries as well, most of them so far as they are concerned, they
have an intermediate court of appeal between the High Courts and Apex Court of the country and that is
a court of appeal which absorbs all these cases of a nature which is other than constitutional case, which
the Supreme Court has been doing today but which should be taken over by the Courts of Appeal. The
judgments of the Courts of Appeal would be final and there would be no appeal from that . 'In
support of this, the AG said that this would enable the judges of the Supreme Court to sit back and hear
the cases patiently, write excellent judgments, read text books of law written in different countries and
incorporate the same in their judgements. Referring to Justice KK Mathew's article in which he had said
that he could envisage in due course the Supreme Court consisting of as many as 100 judges, AG said,
'If this is to be true then I would say that so far as we are concerned, we are admitting to a failure to the
regulating structure of our court system in a manner where it would be able to bring justice swiftly and at
reasonable prices to the litigants of this country.'He also said that time had come when there was a need
to rethink the entire structure of the Supreme Court as it existed today because there was no use brushing
everything under the carpet.Adding that whatever reforms that were going to be implemented should not
be restricted to Supreme Court but also be applied for High Courts and Trial Courts, AG KK Venugopal
posed a question, ‘Are we aware of the fact as to what suffering a litigant undergoes when the Trial
Court proceedings go on and they wait and each time the case gets adjourned by 6 months and they don't
know when the case will be taken up and finished?'During the course of his address, AG also urged for
doing away with the cumbersome procedure adopted in our country for disposal of cases. 'Today we
have inherited a system extremely cumbersome where the procedure in the CPC which is a fat
book would result necessarily in delaying the disposal of cases. The criminal cases of course have a
procedure which gives a full right of defence of the accused, but I think that the cumbersome procedure
should be done away with," said AG.
=========================================
The passing of Citizenship Amendment Act (CAA) 2019 in Parliament has led to massive levels of mass
protests across the country as many see it as an act that divides the country on the basis of religion. The
speculation of nationwide National Register of Citizens (NCR) update added more fuel to the ongoing anti-
CAA protests. Here are some of the key details about the CAA and NRC.
What is CAA
The Citizenship Act, 1955 provides for acquisition, determination, and termination of Indian citizenship.
The Act has been amended several times in the past; the latest amendment was passed in Parliament on
December 11, 2019. The Citizenship (Amendment) Act, 2019 (CAA) enables migrants/foreigners of six
minority communities from three specified countries who have come to India because of persecution on
grounds of their religion to apply for Indian citizenship. Such a foreigner has to become eligible to apply
for citizenship after fulfilling the minimum legal requirements.
What is NRC: National Register of Citizens (NRC) is a record of the citizen of India. The Citizenship
Act, 1955 provides for compulsory registration of every citizen of India and issuance of National Identity
Card to him.
What's the difference between CAA and NRC?
CAA is applicable for illegal migrants residing in India and does not apply to any Indian citizen at all.
NRC consists of a record of citizens of India only excluding others.
The CAA does not apply to Indian citizens. They are completely unaffected by it. It seeks to grant Indian
citizenship to particular foreigners who have suffered persecution on grounds of their religion in three
neighbouring countries.
CAA stands for Citizenship Act (2019) that was passed in the Parliament on December 11, 2019. The
2019 CAA amended the Citizenship Act of 1955 allowing Indian citizenship for Hindu, Sikh,
Buddhist, Jain, Parsi, and Christian religious minorities from the neighboring Muslim majority
countries of Pakistan, Bangladesh and Afghanistan. Under CAA 2019 amendment, migrants who
entered India by December 31, 2014, and had suffered eligious persecution or fear of religious persecution
in their country of origin, were made eligible for citizenship by the new law. The new amendment
triggered widespread protests across the country including national capital region for discriminating on the
basis of religion.
=========================================
SARFAESI Act
 The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002, more commonly known by its shorter name SARFAESI Act, is a legislation that allows
banks and other financial organizations to recover bad loans effectively.
 The act can be utilized to tackle the problem of Non-Performing Assets (NPAs) through different
procedures. However, this is possible only for secured loans. For unsecured loans, banks should
move the court to file a civil case of defaulting.
 This act makes court’s intervention unnecessary in case of secured loans. The first asset
reconstruction company (ARC) of India, ARCIL, was set up under this act.
Note on SARFAESI Act
Through the SARFAESI Act, secured creditors (banks or financial institutions) have many rights for
enforcement of security interest under section 13 of this act. If the borrower of financial assistance makes
any default in repayment of a loan or any instalment and his account is classified as Non-performing
Asset by secured creditor, then secured creditor may require before expiry of period of limitation by
written notice to the borrower for repayment of due in full within 60 days by clearly stating amount due
and intention for enforcement.
Basically, the SARFAESI Act empowers financial institutions to ‘seize and desist’. They should give a
notice to the defaulting borrower asking to repay the amount within 60 days. If the debtor doesn’t comply,
the bank can resort to one of the three following measures:
1. Take the possession of the loan security.

2. Sell or lease or assign the right over the security.
3. Manage the asset or appoint someone to manage the same.
The Act also provides for the establishment of Asset Reconstruction Companies (ARCs) to acquire assets
from banks and other financial institutions. ARCs are regulated by the RBI.
=========================================
News item dated 01/12/2021: 'Senior Citizens Do Not Have Luxury Of Time : Bombay High Court
Upholds Maintenance Tribunals Power To Pass Eviction Orders'
The Bombay High Court has observed that the Maintenance Tribunal under the Maintenance and
Welfare of Parents and Senior Citizens Act, 2007 can pass an order for removal of a person from the
senior citizen's property. A division bench comprising Justice Gautam Patel and Madhav J Jamdar
endorsed the view expressed by a division bench of the Delhi High Court in the case Sunny Paul v
State of NCT of Delhi wherein it was laid down that the Maintenance Tribunal can pass an order of
eviction.
Factual Background: Mr Shetty, who is about 94 years old, in his complaint had said that he was being
continuously harassed and mistreated by his daughter Shweta who came to India in 2015 and moved into
the flat unannounced. He further said that she had been rude, aggressive and that her conduct deteriorated
and worsened over time and that she began to badger Mr Shetty 'for her share of the property'. She further
said that she would leave the flat only after she was given 'her share' and her conduct posed a danger to his
safety. Since she continued to harass and demand her share, Mr Shetty approached the Tribunal seeking a
relief to evict her from his flat. Aggrieved with the Tribunal's order, the petitioner Shweta had approached
the High Court.
Counsel's Contention: Advocate Pradeep Thorat for the petitioner ('Shweta') submitted that the
Tribunal's order had resulted in eviction of Shweta from the premises which was impermissible under the
scheme of the Maintenance and Welfare of Parents and Senior Citizens Act 2007. It was also his
contention that u/s 5 the Tribunal could only entertain an application by the Tribunal and Mr Shetty's
application was for eviction. He further submitted that the Tribunal acted without jurisdiction, apart from
the fact that it proceeded on a significant procedural illegality.Dr Sujay Kantawala with Advocate Aditya
Iyer appeared for Vinata Shetty, Advocate Aishwarya Kantawala for Yamuna Patil, Papia Patil andMR
Shetty. AGP Kedar Dighe appeared for the State.
High Court's Analysis: Relying on Ritika Prashant Jasani v Anjana Niranjan Jasani & Ors 2021 SCC
OnLine Bom 1802, in which the appellant's claim was that the house was a 'shared household', i.e. that she
had a legally definable right in the property itself, the bench said it was not the case before it where Shweta
accepted that she had no right in the flat in question. In this regard, the bench observed that, 'The mere use
of the word 'eviction' is not by itself determinative. To constitute eviction, or to invoke any prohibition
against eviction, it must be shown that some legally enforceable civil right of the appellant in the property
itself has been determined and that the appellant has been denied that right. Removal of a person with no
right in the premises is not eviction so as to attract any such prohibition. After all, as Jasani notes, the
statutory intent is to protect senior citizens. It is not to foist on senior citizens an imaginary claim
over their own property where the claimant has no such right to begin with. The statutory intent is
not to limit the rights of senior citizens, but exactly the reverse."
=========================================
News item dated 18/11/2021: ‘Ambush PILs' Filed To Preclude Genuine Litigants; Summary
Dismissal Of Earlier Article 32 Petition Won't Operate As Res Judicata : Supreme Court.
The Supreme Court observed that the summary dismissal of an earlier writ petition under Article 32
of the Constitution does not operate as res judicata. There is a trend of poorly pleaded public
interest litigations being filed instantly following a disclosure in the media, with a conscious intention
to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in
public interest, the bench comprising Justices DY Chandrachud and BV Nagarathna observed. The
court said that it must be alive to the contemporary reality of 'ambush Public Interest Litigations'.
The court was considering the PIL filed by National Confederation of Officers Association of Central
Public Sector Enterprises challenging the disinvestment of the residual shareholding of the Union
Government in Hindustan Zinc Limited, representing 29.54 per cent (approx.) of the equity capital.The
Union Government and SOVL(Sterlite Opportunities and Ventures Limited) objected to the
maintainability of the writ petition, and sought its dismissal at the threshold on the ground of res judicata.
It was contended that the reliefs sought in the petition overlap with the reliefs sought by the petitioners in
the earlier petition instituted by Maton Mines Mazdoor Sangh, which was dismissed by a three-judge
Bench of this Court on 10 December 2012.The court observed that the earlier petition filed by Maton
Mines Mazdoor Singh was dismissed in limine, without a substantive adjudication on the merits of their
claim, and therefore the present writ petition is not barred by res judicata. It noted that the principles of res
judicata and constructive res judicata have been applied to the exercise of the writ jurisdiction, including
public interest litigation. . Yet courts have been circumspect in denying relief in matters of grave public
importance, on a strict application of procedural rules, the court said.The bench, referring to earlier
judgments on this issue, observed thus:While determining the applicability of the principle of res judicata
under Section 11 of the Code of Civil Procedure 1908, the Court must be conscious that grave issues of
public interest are not lost in the woods merely because a petition was initially filed and dismissed, without
a substantial adjudication on merits. There is a trend of poorly pleaded public interest litigations being filed
instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the
Court and preclude genuine litigants from approaching the Court in public interest. This Court must be
alive to the contemporary reality of 'ambush Public Interest Litigations' and interpret the principles of res
judicata or constructive res judicata in a manner which does not debar access to justice. The jurisdiction
under Article 32 is a fundamental right in and of itself.Therefore, the court held that summary dismissal of
an earlier petition under Article 32 of the Constitution does not bar the present writ petition on grounds of
res judicata as there has been no substantive decision on the merits of the issues. Therefore, it partly
allowed the writ petition, while considering other aspects of the case.
Case name: National Confederation of Officers Association of Central Public Sector Enterprises vs
Union of India Citation: LL 2021 SC 658Case no. and Date: WP(C) 229 of 2014 | 18 November 2021
Coram: Justices DY Chandrachud and BV NagarathnaCounsel:
Adv Prashant Bhushan for petitioner, Sr. Adv Harish Salve for respondents, SG Tushar Mehta
=========================================
News item dated 19/11/2021: Consent of state not required for interfaith marriages, registrations
can't be denied, rules Allahabad HC
In a significant decision, the Allahabad High Court has said that the consent of the state or executive is
not required for marriages after changing religion and that the registration of such marriages cannot be
refused on the ground that the prior consent of the district magistrates was not taken before solemnising
the marriage.
A single bench comprising Justice Suneet Kumar passed the order on a bunch of petitions filed by 17
interfaith couples, who had contended that registration of their marriages was refused as they had not
obtained prior consent of the district magistrates as required by the Uttar Pradesh Prohibition of
Unlawful Religious Conversion Act 2021. “The consent of the family or the community or the clan or the
State or Executive is not necessary, once the two adult individuals agree to enter into a wedlock which is
lawful and legal....their consent has to be piously given primacy, with grace and dignity.....the Marriage
Officer/Registrar cannot refuse to register a duly solemnised marriage, and/or, insist of a conversion
approval of the district authority,” the court said.
The choice of a partner, whether within or outside marriage, lies within the exclusive domain of each
individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute
right of an individual to choose a life partner is not in the least affected by matters of faith,'' it added. The
court observed that the law would be assessed not with reference to its object but on the basis of
its effect and impact on the fundamental rights based on the test of fairness and reasonableness.''The
Unlawful Conversion Act, 2021, per se, does not prohibit interfaith marriage. The Marriage
Registrar/Officer, however, lacks power to withhold the registration of marriage, merely for the reason
that the parties have not obtained the necessary approval of conversion from the district authority. Such
an approval is directory and not mandatory. If interpreted otherwise the Act would not satisfy the test of
reasonableness and fairness, and would fail to pass the muster of Article 14 and Article 21,'' the court
said.
One of the petitioners had contended that she had converted and married a Muslim but her application for
registration of the marriage was rejected on the ground that she had not taken prior permission of the
district magistrate before converting. Similarly, the application of a Muslim woman, who had converted
and married a Hindu youth, was also rejected on the same ground. Uttar Pradesh was the first state to
have a law against religious conversion through deceit, force, allurement or any other fraudulent means
or for the purpose of marriage. It provided that anyone wanting to convert on one's own volition to marry
would have to compulsorily obtain permission of the concerned district magistrate two months in
advance.
=========================================
News item dated 18/12/2021: ‘Unfortunate That Bar Leaders Tend To Play God By Rescuing Errant
Advocates': Madras High Court While Holding SC Advocate Guilty Of Contempt
In a suo motu criminal contempt petition against Supreme Court lawyer R. Krishnamurthy, Madras High
Court has made some pertinent observations about the symbiotic relationship between the Bar and the
Bench that should be sustained at any cost. A division bench of Justices R. Hemalatha and P.N Prakash
raised concerns about the rising number of cases registered against advocates in the state. According to
statistics, there have been 263 cases against advocates from January till April this year. While holding the
contemnor guilty under Sections 2 (c)(i) [scandalising the Court] and 2(c)(iii) [interfering with the
administration of justice] of Contempt Of Courts Act, bench noted that Magistrates to Supreme Court
judges have come from the Bar. We look upon the Bar as an independent and fearless body that would
protect the judiciary when the judiciary is vilified and targeted by others, the court noted at the outset
before making comments about the delinquent conduct of some members of the Bar. It is also unfortunate
that Bar leaders tend to play God by readily going to the rescue of errant advocates, who involve
themselves in breaking the institution from inside. We genuinely fear that if the Bar, which is the source
for the Bench, becomes criminalized and corrupt, the Bench will get only bad apples. That will be the last
nail in the coffin of democracy. There is no point in ruing thereafter that the judiciary has collapsed",the
court expressed its reservations about the recent incidents where lawyers have been booked by the police
while clarifying that it was only their 'paternal instinct' to express their concern in the aftermath of such
incidents involving the members of Bar.
The contempt case against Advocate R. Krishnamurthy was initiated on the basis of a slandering audio
message that was circulated in WhatsApp about Madras High Court Justice M. Dhandapani. According
to the remarks of accused advocate in the audio, Justice M. Dhandapani was not impartial while hearing
an anticipatory bail application filed by a woman lawyer and her daughter who is a law student. The
offence that the daughter was alleged to have been committed was violation of Covid Protocol by moving
outside without the requisite pass. The mother was accused of verbally abusing the police while defending
her daughter's actions. The accused advocate mentions in the audio recording that it is prudent for
Justice M. Dhandapani to recuse himself from the case since he has chosen the side of the Police in the
matter while making denigrating remarks about the legal fraternity. The accused even gave a warning that
he would file a special leave petition before Supreme Court to expunge the remarks pertaining to the same
if its recorded in the court order. On this issue, the division bench notes that instead of recording his
protest in a dignified manner in the course of hearing itself or after taking an appointment with the judge
in his Chambers, he chose to accuse Justice M. Dhandapani by circulating the audio clipping. 'If the
respondent had not been an advocate, then, we could be sympathetic to some extent. We usually extend
the longest of our olive branches to disgruntled litigants who attack Judges off and on. However, if we
show leniency to the respondent, it is tantamount to showing misplaced sympathy', the court observes
while noting that condoning the act would send out a wrong message to the public that obtaining a law
degree would make them impervious to the consequences of attacking the judges. 'They would be
emboldened to obtain a law degree, which, we are told, is freely given in some States by law colleges
functioning in garages and terraces and start maligning the institution in the social media like the
respondent', the court elaborated.
Therefore, the court directed him to pay Rs. 4,000/- as fine for both the charges where he was found
guilty. Upon failure to pay the fine amount, he will have to undergo one week simple imprisonment
for each charges proved against him. Moreover, the court also held that the respondent will not be
allowed to practise in the Madras High Court for a period of one year from the date of the order.
News item dated 16/01/2022: Why Bishop Franco Mulakkal's Acquittal In Nun Rape Case Is Flawed ?
"The trial court which acquitted Catholic Bishop Franco Mulakkal in the nun rape case applied a wholly
unrealistic standard while discarding the testimony of the victim in its entirety. The Additional Sessions
Court at Kottayam ignored certain well-settled principles of appreciation of evidence and adopted an
approach that did not take into account normal human conduct.The primary flaw in the judgment, in the
humble opinion of this author, is that it seems to have applied the principle 'falsus in uno, falsus in
omnibus' (false in one thing, false in everything) to reject the victim's testimony. According to the
settled principles of evidence followed by Indian Courts, the evidence of a witness is not to be discarded
totally even if some aspects of it are unbelievable, exaggerated or inaccurate. There are numerous
precedents that caution that the principle 'falsus in uno, falsus in omnibus' (false in one thing, false in
everything) is not a sound rule to be applied in India.
To explain this principle, a quote from a Supreme Court precedent(Ranbir v. State AIR 1973 SC 1409 is
useful : 'Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove
guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from
chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused
notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity
of material particular would not ruin it from the beginning to end'.The Supreme Court has said in another
case that 'if a whole body of the testimony were to be rejected, because witness was evidently speaking an
untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop'
(Gurucharan Singh and Another v. State of Punjab, AIR 1956 SC 460). This approach is based on a
pragmatic and realistic understanding that 'one hardly comes across a witness whose evidence does not
contain a grain of untruth or at any rate exaggeration, embroideries or embellishment'. However, in the
Bishop Franco case, the Additional Sessions Court at Kottayam threw out the nun's evidence wholly by
saying that it was unbelievable on some counts. The Court said it was not possible to separate the 'grain
and chaff' and the only option was to discard the evidence totally. This is what the Court observed : '…
when it is not feasible to separate truth from falsehood, when grain and chaff are inextricably mixed up,
the only available course is to discard the evidence in toto'.
News item dated 10/02/2022: ‘Judicial Officer Battling With Mother In Her': Supreme Court While
Reinstating District Judge Who Resigned Out Of Desperation.
The Supreme Court, on Thursday, reinstated a woman Additional District and Sessions Judge ("AD&SJ"),
who was constrained to resign, after she raised allegations of sexual harassment against a then sitting
Judge of the Madhya Pradesh High Court, Mr S.K.Gangele.
The Court's indulgence was, inter alia, sought in directing the reinstatement of the petitioner as AD&SJ
from the date of resignation, i.e., 15.07.2014 with continuity in service, back wages and consequential
reliefs. Acknowledging the petitioner's resignation was not voluntary, the Bench comprising Justices L.
Nageswara Rao and B.R. Gavai quashed the order passed by the Government of Madhya Pradesh, Law
and Legislative Affairs Department, accepting the resignation of the petitioner and directed her
reinstatement with continuity in service and all consequential benefits w.e.f. 15.07.2014, but without any
back wages. While making submissions, Senior Advocate, Ms. Indira Jaising appearing on behalf of the
petitioner had beseeched the Apex Court to consider the dilemma of the petitioner, who was compelled to
choose between her duties as a judicial officer and her duties as a mother. She contended that pushing a
woman to make such a choice is in derogation of the principles laid down in Article 11 of Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW). It was her case that the
transfer order was a vindictive response to the petitioner protesting against the sexual harassment by a then
sitting High Court judge, who was her supervisor. The petitioner's daughter was studying in Class 12
and was preparing for her Board and other Competitive examinations, at the time when the transfer order
was issued to her. The petitioner's husband had to stay in Delhi in order to look after his aged parents.
Acknowledging her circumstances, the Court noted that she was playing the role of both a father and a
mother for her daughters and had to draw a balance between her profession and dependent children. When
the transfer order was passed, she had submitted a representation asking the Transfer Committee to
consider her difficulty of moving to another city, especially Category 'C' city where she would not be able
to provide her daughter with quality education. The Court observed that her ardent request was rejected in
a cryptic and arbitrary manner, without due consideration.
The Court observed :'

The petitioner was a Judicial Officer and a mother too. The Judicial Officer in her must have been battling
with the mother in her. On one hand, was her career as a Judicial Officer; on the other hand, was the
possibility of her daughter's educational prospects and career coming into jeopardy, if she shifted to the
place of posting at Sidhi. A possibility of her mind engrossed with a feeling, that she was subjected to
injustice by the very Institution of Judiciary, cannot be ruled away.'
It appears that in a gruesome battle between a mother and a Judicial Officer, the Judicial Officer lost the
battle to the mother.
Reaction of a person to a particular situation would depend from person to person. No two individuals
can be expected to respond identically to a same situation. It is quite possible that some other person in the
petitioner's place, would have chosen to pursue one's own career without bothering about the daughter's
education and prospects of good career.
Acknowledging the unfavourable circumstances of the petitioner, the Court noted that her resignation was
a result of the frustration that emanated from her thought that the very institution she had vouched to
serve treated her in an unjust manner. '…The resignation letter in the present case, as has already been
discussed hereinabove, appears to be on account of exasperation and frustration actuated by a thought, that
injustice was being meted out to her by the very Institution of Judiciary.' The petitioner was transferred
from Gwalior, a Category 'A' city to Sidhi, a Category 'C' city. Immediately, she had sent a representation
seeking eight months' extension in the transfer, till the time her daughter, then studying in Class 12
completes her academic year, which was rejected. A second representation was made seeking transfer to a
Category 'B' city so that her daughter could continue with her education, which was also rejected.
Therefore, the petitioner was constrained to resign.
Analysis by the Supreme Court
Though non-enforceable, Transfer Policy was required to be followed as it created legitimate expectation
The Court noted the Transfer Policy, which was laid down by the Madhya Pradesh High Court on
12.01.2012 was a set of guidelines for internal administration for the subordinate judiciary. And the same
though not enforceable in law creates a legitimate expectation that such policy would be given due
weightage when decisions of transfer are taken.
Transfer was rushed
It was observed that the petitioner's transfer was rushed as the decision to transfer her mid-term was taken
abruptly on the complaint of the District and Session Judge, even though in the agenda for mid-term
transfers the petitioner's name was not included.
Non-application of mind in rejecting representation
The petitioner had a legitimate expectation that her representation would be considered in terms of Clause
9(a) of the policy, which required a request for extensions to be considered if the judicial officer's daughter
was to appear for the final year Board Examination and no hostel facility was available in her school. The
procedural requirement under Clause 9 to obtain comments of the District Judge and Portfolio Judge were
also not met. The Court noted that the second representation of the petitioner was rejected without
application of mind.
Not a case of deficiency in performing duty
The only reason for her transfer mid-term, as per Clause 22 of the Transfer Policy, could have been
deficiency in her service, which is not true for the petitioner as according to the assessment for the year
2013, her work was adjudged as 'very good'.
Transfer not in public interest or in the interest of administration
Pendency of cases at Sidhi, a Category 'C' city could not have been the reason for transfer. From material
on record it is evident that at the relevant point in time there was more pendency in Category 'B' cities,
where the petitioner, as alternative, sought transfer in her second representation.
The other judicial officers transferred mid-term were not similarly situated
The 26 other officers who were transferred mid-term were those who were either on deputation or ex-cadre
posts and have been brought into the mainstream.
Transfer order and rejection of representation were arbitrary
The Court held that the petitioner had established that the transfer order was in contravention of the extant
policy and the rejection of the representations was arbitrary. The burden when shifted to the respondents to
show the order was reasonable, it was not discharged by them. The Court noted that in exercise of
administrative functions the High Court was State under Article 12 and it is trite that State is obligated to
act fairly without malice either in fact or in law. As the Court observed the transfer order was passed based
on irrelevant factors which were not germane for passing the order, it was held to be 'malice in law'. The
arbitrary, irrational and unreasonable rejection of representation was also found to be unsustainable in law.
Denial of her legitimate expectation led to exasperation
The petitioner was compelled to choose between her duties as a judicial officer and that of a mother and
she chose the latter. The Court observed that her frustration was evident from the language of the
resignation letter. It found that her resignation was not voluntary.
The rushed acceptance of resignation is suspicious
On 03.07.2014, the District and Sessions Judge, Gwalior filed a complaint against the petitioner with the
Registrar General of the MP High Court. On 07.07.2014, the Transfer Committee decided to transfer the
petitioner and the order was immediately issued on 08.07.2014. She submitted her first representation on
09.07.2014, which was rejected on 11.07.2014. On the same day, i.e. 11.07.2014, she made her second
representation, which was rejected on the next working day, 14.07.2014. On 15.07.2014, the petitioner
tendered her resignation. On the very next day, 16.07.2014, the MP High Court forwarded it to the
Government and on 17.07.2014, the Government accepted the resignation.

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