28A(1) (d) SEBI's power to order Arrest and Civil Prison is Subject Judicial Precedents under Income Tax & Other Laws
Since August, 2014, SEBI's Recovery Officer is given power to order Civil Prison of defaulter.
The provision further says that this provisions is subject to other provisions of Income Tax Act etc.
The provision itself does not contain any guideline about
1) Length of such Detention and
2) Findings which are necessary to be recorded by Recovery officer before ordering Arrest and Civil Prison.
The section only speaks about purpose of Arrest and Detention.. --That is to enforce recovery of dues of SEBI.
SIMILAR PROVISIONS IN OTHER LAWS.
There are similar provisions in other laws. Namely, in Civil Procedure Code and Income Tax Act.
Validities of such provisions have been challenged upto Supreme Court and the Law is by and large settled by Supreme Court decisions in this area,...
mainly on following THREE POINTS.
Point 1 : India is a signatory to International Convention where it has signed that in India, no one will be sent to jail on ground that he has no money to pay debt.
Point 2 : If a person has no money to pay, he cannot be sent to jail for inability to pay debt.
Point 3 : Even if a person has no money to pay debt, he can be sent to jail if it is found that in order to avoid payment of debt, he had malafidely disposed off all his money and properties.
CONCLUSION
As per judicial precedents, the Recovery officer can arrest and detain a person only if he records findings that
1) Though defaulter had means to pay dues, he has malafidely disposed off his properties to avoid payment of SEBI dues
2) Though he has means to pay, he is avoiding payment.
PROCEDURE
Before ordering Arrest, Recovery Officer issues a notice to Defaulter.
In reply, the Defaulter should produce all details to support his stand that he has actually no property to pay dues, and he has done nothing to malafidely disposed off his properties to avoid debt, and he has bonafidely no means to pay.
If inspite of such facts, Recovery and Arrest are ordered, then Defaulter should take appropriate legal remedy to challenge vires of this provision after taking suitable legal advice.
The views expressed above are in general nature and is not a legal advice.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 31, 2014
Under present law, public is not given right to Appeal against Censor Board Certificate. Only producer can Appeal
At present, under Cinemetrograph Act, as per my reading of the Act, if a person applying for Censor Board Certificate is aggrieved by any orders of cutting scenes or refusing certificate, he can apply to Appellate Tribunal.
But Common man does not appear to have been given a right to challenge a Certificate of Censor Board before any Tribunal.
This is lacuna in law.
A common man can go to High Court or Supreme Court by way of writ petition. But here Court may say, "The people sitting in Censor Board are expert on the Film subject. How can we substitute our decision in place of their decision?"
It means that the person going to High Court or Supreme Court can satisfy Court to interfere only if he produces Opinion of some well known experts on film industry to suggest that Certificate is wrongly given or that certain scenes ought to be cut.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
Apparently Unconstitutional Provision - 129E & 129EE of Customs Act, Requiring Pre Deposits for Appeals
In India, challenging an Unconstitutional Provision of Law is a heart burning and long long procedure, which permits such laws to to injustice for a long time.
Since August, 2014, new provisions are Added in Customs Act and Excise Acts which requires an Appellant to Pre Deposit 10% Amount of Duty or Penalty demanded. Unless the pre deposits such amount is made, his Appeal is not heard.
In my view, this provisions appear unconstitutional for following reasons.
A. Art.14. Arbitrariness, Classifications has no nexus to rationales.
B. Unjust unfair enrichments. - Govt not liable to pay interest for period of appeal even when appellant succeeds in Appeal.
C. In operations, violative of inherent jurisdiction of every judicial body to hear any appeal without insisting any Pre- Deposits.
REASONS IN DETAILS.
A) Three classes of Appeals are defined.
1) Appeal only against main order 2) Appeal against order asking Penalty
3) Order challenging both. For all three classes pre deposit of 10% is asked.
Provisions further says that no forcible recovery during pendency of Appeal, if 10% is paid.
Now, Penalty is only a Consequence of main order.
If a person appeals only against main order, than it cannot be enforced during appeal.
When main order is stayed by Law, it's consequences also remain suspended.
If main order is set aside, Penalty will have to go as I understand.
If this is correct than the provision is violative of Art.14 so far as it asks for 10% deposit on penalty.
B) Unjust Enrichment. Unfairness.
The principle says that no one should get unjustly and unfairly enriched by virtue of court orders.
Here, no interest is provided for period during which appeal is pending as per my reading of provisions.
Thus revenue authorities gets unjust enrichment by making wrong or excessive demands.
C) Violative of Judicial Powers by operating procedures.
It is unwritten law that every judicial body hearing any appeal can pass any interim orders, whether provided by law or not.
Law cannot bind court by saying that such body will not pass such interim orders.
Here, the provisions in the first part say that "No Appeal without Pre Deposit" but in last part says "Appeal Shall Be Liable To Be Rejected".
It means, Appeal and Application for Waiver of Pre Deposit have to be first heard if such an application is filed.
Secondly, if any Pre Deposit is deficient, the Tribunal has inherent power to grant time to deposit balance amount.
It means, Tribunal cannot refuse to hear an appeal related applications unless full Pre Deposit is made.
A friend told me that in practice, no appeal is accepted at counter unless full pre deposit made.
In my personal view, such procedure not sustainable in law.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Since August, 2014, new provisions are Added in Customs Act and Excise Acts which requires an Appellant to Pre Deposit 10% Amount of Duty or Penalty demanded. Unless the pre deposits such amount is made, his Appeal is not heard.
In my view, this provisions appear unconstitutional for following reasons.
A. Art.14. Arbitrariness, Classifications has no nexus to rationales.
B. Unjust unfair enrichments. - Govt not liable to pay interest for period of appeal even when appellant succeeds in Appeal.
C. In operations, violative of inherent jurisdiction of every judicial body to hear any appeal without insisting any Pre- Deposits.
REASONS IN DETAILS.
A) Three classes of Appeals are defined.
1) Appeal only against main order 2) Appeal against order asking Penalty
3) Order challenging both. For all three classes pre deposit of 10% is asked.
Provisions further says that no forcible recovery during pendency of Appeal, if 10% is paid.
Now, Penalty is only a Consequence of main order.
If a person appeals only against main order, than it cannot be enforced during appeal.
When main order is stayed by Law, it's consequences also remain suspended.
If main order is set aside, Penalty will have to go as I understand.
If this is correct than the provision is violative of Art.14 so far as it asks for 10% deposit on penalty.
B) Unjust Enrichment. Unfairness.
The principle says that no one should get unjustly and unfairly enriched by virtue of court orders.
Here, no interest is provided for period during which appeal is pending as per my reading of provisions.
Thus revenue authorities gets unjust enrichment by making wrong or excessive demands.
C) Violative of Judicial Powers by operating procedures.
It is unwritten law that every judicial body hearing any appeal can pass any interim orders, whether provided by law or not.
Law cannot bind court by saying that such body will not pass such interim orders.
Here, the provisions in the first part say that "No Appeal without Pre Deposit" but in last part says "Appeal Shall Be Liable To Be Rejected".
It means, Appeal and Application for Waiver of Pre Deposit have to be first heard if such an application is filed.
Secondly, if any Pre Deposit is deficient, the Tribunal has inherent power to grant time to deposit balance amount.
It means, Tribunal cannot refuse to hear an appeal related applications unless full Pre Deposit is made.
A friend told me that in practice, no appeal is accepted at counter unless full pre deposit made.
In my personal view, such procedure not sustainable in law.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 30, 2014
Know the Difference between "Discharge" and "Acquittal" in criminal cases.
Police collects evidence and produces before judge and asks for trial of accused.
At this stage, Accused has right to say to the judge,"Please go through the evidence produced by police... There is no evidence against me.. Please discharge me.. And dismiss the case against me"...
This is popularly known as "Discharge Application".
The judge then goes through the papers filed by police. He also hears argument of public prosecutor.
Then if the Judge forms an opinion that there is no enough evidence against Accused, he will Discharge the accused and will dismiss case of police.
This is called DISCHARGE.
On the other hand, if judge finds that there is evidence pointing to guilt of accused, he will dismiss Discharge Application of accused.
He will proceed with trial and will record evidence of witnesses.
If after all evidence is recorded, if there is not enough evidence against Accused, he will ACQUIT the Accused.
This is called ACQUITTAL.
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
At this stage, Accused has right to say to the judge,"Please go through the evidence produced by police... There is no evidence against me.. Please discharge me.. And dismiss the case against me"...
This is popularly known as "Discharge Application".
The judge then goes through the papers filed by police. He also hears argument of public prosecutor.
Then if the Judge forms an opinion that there is no enough evidence against Accused, he will Discharge the accused and will dismiss case of police.
This is called DISCHARGE.
On the other hand, if judge finds that there is evidence pointing to guilt of accused, he will dismiss Discharge Application of accused.
He will proceed with trial and will record evidence of witnesses.
If after all evidence is recorded, if there is not enough evidence against Accused, he will ACQUIT the Accused.
This is called ACQUITTAL.
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Public Interest Activist can file complaint of violation of Official Secret Act. Question of Sanction under Sec.13(3) will come only..
A Public Interest Activist can file complaint of violation of Official Secret Act.
The Question of Sanction under Sec.13(3) will come only at the stage of taking cognisance by Magistrate.
In case of Dr. Swamy Vs Dr ManMohan Singh, SC has has held that there is no bar in filing complaint.
It is not law that no complaint con be filed until Sanction from Govt is received.
Magistrate has power to order investigation.
Sanction is a later stage required at time of taking cognisance when Magistrate will actually decide to try the case.
The above case was under Prevention of Corruption Act.
But I think that same analogy will apply under Official Secret Act., Sec 13(3).
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The Question of Sanction under Sec.13(3) will come only at the stage of taking cognisance by Magistrate.
In case of Dr. Swamy Vs Dr ManMohan Singh, SC has has held that there is no bar in filing complaint.
It is not law that no complaint con be filed until Sanction from Govt is received.
Magistrate has power to order investigation.
Sanction is a later stage required at time of taking cognisance when Magistrate will actually decide to try the case.
The above case was under Prevention of Corruption Act.
But I think that same analogy will apply under Official Secret Act., Sec 13(3).
Haresh Raichura
30/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 28, 2014
POSCO misuse in cases related to rapes where rape is alleged against minor (age below 18 but above 15)
In such rape cases, there are cases also of consent of the victim. Victim and accused both may be teenagers. But Law says that Consent of a minor is no consent.
This is basically a Civil Law Concept incorporated in Criminal law.
But in criminal law, conduct of witnesses and victim is relevant. It is an important evidence available to accused.
This defence is denied or not taken into consideration by law in such cases. Legal presumptions of guilt are drawn by court. Burden is cast on accused to prove innocence. Sometimes it is impossible to prove a negative.
The abuse of law or false accusations is possible. Particularly when corruption is perceived in evidence collecting agencies.
Same is situation in POSCO cases. It's aim is to protect children. But its provisions are capable of misused because it draws presumptions.
When there are too many Laws in same area, selective application of laws takes place. In some cases, POSCO will be used and in some it may not be used. This brings corruption in investigative agencies.
The laws should be few and clear. Provisions should not be capable being misused against innocent.
Haresh Raichura
28/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
This is basically a Civil Law Concept incorporated in Criminal law.
But in criminal law, conduct of witnesses and victim is relevant. It is an important evidence available to accused.
This defence is denied or not taken into consideration by law in such cases. Legal presumptions of guilt are drawn by court. Burden is cast on accused to prove innocence. Sometimes it is impossible to prove a negative.
The abuse of law or false accusations is possible. Particularly when corruption is perceived in evidence collecting agencies.
Same is situation in POSCO cases. It's aim is to protect children. But its provisions are capable of misused because it draws presumptions.
When there are too many Laws in same area, selective application of laws takes place. In some cases, POSCO will be used and in some it may not be used. This brings corruption in investigative agencies.
The laws should be few and clear. Provisions should not be capable being misused against innocent.
Haresh Raichura
28/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 27, 2014
Do you know that even if Witnesses becomes untraceable or dead, the Court can still pass conviction?
If Witness becomes untraceable or dead, it does not mean end of trial.. It does not mean that court is helpless and it has to acquit accused.
There are some cases where court has no option but to acquit the accused but there are some cases, as in prevention of corruption cases, where identity of witness is not an issue, conviction may follow.
Criminal Procedure Code has taken care of such situations. In such cases the court. can rely on other previously recorded statements or complaints of the witness in present case or in previous case..
The law is so framed that accused does not get advantage because of death of witnesses or their non traceability.
Criminal Procedure Code has taken care of such situations. In such cases the court. can rely on other previously recorded statements or complaints of the witness in present case or in previous case..
The law is so framed that accused does not get advantage because of death of witnesses or their non traceability.
But this Rule does not apply in cases of insufficient evidence or no evidence.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014 All Rights Reserved
Can FIR be quashed against Director of Company, if he can satisfy HC that he was not responsible? Yes
When a criminal complaint case or FIR is filed against a Company, often its Directors are also made accused.
Some Directors may be non- active directors and may not be responsible for day to day affairs of the Company.
Then they may not be liable in criminal law.
Earlier there were conflicting views.
In one case it was held that High Court cannot quash FIR because whether a Director was responsible for day to day affairs of Company is question of fact which has to be decided only in trial.
Therefore, it was held that it is not open to HC to quash the complaint under Sec.482 of Cr. PC.
But now recently in case of Gunmala reported in 2014 SCALE 270
It has been held that if Director can show to High Court on basis of indisputable evidence that he was not responsible for day to day affairs of the company, then the complaint can be quashed by HC under Sec.482 of Cr.P.C.
Some Directors may be non- active directors and may not be responsible for day to day affairs of the Company.
Then they may not be liable in criminal law.
Earlier there were conflicting views.
In one case it was held that High Court cannot quash FIR because whether a Director was responsible for day to day affairs of Company is question of fact which has to be decided only in trial.
Therefore, it was held that it is not open to HC to quash the complaint under Sec.482 of Cr. PC.
But now recently in case of Gunmala reported in 2014 SCALE 270
It has been held that if Director can show to High Court on basis of indisputable evidence that he was not responsible for day to day affairs of the company, then the complaint can be quashed by HC under Sec.482 of Cr.P.C.
Thus in each case, whether complaint can be quashed or not depends on 1) Indisputable evidence 2) Satiafaction of High Court.
For more accurate details refer to actual judgement of Supreme Court in Gunmala case.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
Haresh Raichura
27/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
December 26, 2014
SC: Pay Rs. 3 Lakh to every victim of Acid Attack, out of this amount, pay Rs. 1 lakh within a week
The above order is passed On July 17,2013, in case of Laxmi Versus Union of India, in WP No. 129/2006 by Supreme Court of India.
The order is binding to all Chief Secretaries of States and Union Territories of India.
Several other directions are also given, like slapping of fine Rs.50,000/- to whoever may have sold the acid.
Every victim of Acid Attack is to be paid compensation of Rs.3,00,000/- by Government.
And out of this amount, Rs.1 Lakh is to be paid to victim within One Week of the acid attack.
Haresh Raichura
26/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
The order is binding to all Chief Secretaries of States and Union Territories of India.
Several other directions are also given, like slapping of fine Rs.50,000/- to whoever may have sold the acid.
Every victim of Acid Attack is to be paid compensation of Rs.3,00,000/- by Government.
And out of this amount, Rs.1 Lakh is to be paid to victim within One Week of the acid attack.
Haresh Raichura
26/12/2014
Copyright : Haresh Raichura 2014. All Rights reserved.
December 24, 2014
Know the difference between Parole & Furlough leaves given to prisoners.
The convicts in jails are entitled to two types of leave from the jail.
1) Every year, as a matter of right they get leave of about fifteen days to leave jail and to go and meet their families and friends. This is called furlough Leaves.
2) During their jail period, suddenly they need on account of death in family or such some other purpose. Then temporary leave for few days is granted. This is called Parole Leave.
Relevant rules in Prison Manuals are applicable for such leaves.
Haresh Raichura
24/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
1) Every year, as a matter of right they get leave of about fifteen days to leave jail and to go and meet their families and friends. This is called furlough Leaves.
2) During their jail period, suddenly they need on account of death in family or such some other purpose. Then temporary leave for few days is granted. This is called Parole Leave.
Relevant rules in Prison Manuals are applicable for such leaves.
Haresh Raichura
24/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 22, 2014
Law: Man & woman live together for long, law will presume marriage, not concubinage-unless proved otherwise
Law has provisions to draw presumption of marriage when a man and women are living together for many years.
I have yet not come across where such relations are presumed to be live in Relationship or Concubinage by law.
Presumption in law are always subject to proving otherwise. So unless it is proved that woman living with man is not his wife, law will presume her to be wife.
The law is discussed in Madan Mohan Singh V Rajni Kant (2010) 9 SCC 209
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
I have yet not come across where such relations are presumed to be live in Relationship or Concubinage by law.
Presumption in law are always subject to proving otherwise. So unless it is proved that woman living with man is not his wife, law will presume her to be wife.
The law is discussed in Madan Mohan Singh V Rajni Kant (2010) 9 SCC 209
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Sec.144 (Preventing peaceful assembly of people) expire automatically after 2 months.
Sec.144 notifications are issued under Cr.PC to maintain public order and peace.
It prevents people from forming assemblies and gathering.
But such order expires after 2 months which is maximum limit for which such notification can be issued.
Law in this regard is discussed in Himat Lal K Shah Vs. Commissioner of Police, Ahmedabad in 1973 (1) SCC 227
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
It prevents people from forming assemblies and gathering.
But such order expires after 2 months which is maximum limit for which such notification can be issued.
Law in this regard is discussed in Himat Lal K Shah Vs. Commissioner of Police, Ahmedabad in 1973 (1) SCC 227
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Law: Are you owner of Uneaten Food remaining on your dish served to you in Hotels ? Law says No
Law says that you are not the owner of uneaten food on you dish in hotel, even if you may have paid the price.
The payment of price only allows you to sit and eat that food.
You does not become owner of that food.
You cannot do whatever you think fit with uneaten food.
The above view is expressed in Electa B Merril v James W Hodson, (1915 B LRA 481) referred by Supreme Court in Narinder S Chadha v. Municipal Corpn of Greater Mumbai reported in 2014(13)SCALE 575
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The payment of price only allows you to sit and eat that food.
You does not become owner of that food.
You cannot do whatever you think fit with uneaten food.
The above view is expressed in Electa B Merril v James W Hodson, (1915 B LRA 481) referred by Supreme Court in Narinder S Chadha v. Municipal Corpn of Greater Mumbai reported in 2014(13)SCALE 575
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Truth about Supreme Court Judgement permitting "Hukka Smoking"- It never approved it
I was just reading judgement of Supreme Court which permitted Hukka Smoking in public places.
Truth looked different than what was reported in media.
Media reported as if "Supreme Court has Approved/permitted it".
In fact truth is, there is lacuna in Certain Municipal Laws and in Central Laws. Until thiese defects are cured by Parliament or by the State Governments, the Municipality did not have power to pass circulars to ban Hukka Smoking.
That is was Supreme Court said. It did not say that it approves or permits Hukka Smoking.
Proper Laws need to be passed.
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
Truth looked different than what was reported in media.
Media reported as if "Supreme Court has Approved/permitted it".
In fact truth is, there is lacuna in Certain Municipal Laws and in Central Laws. Until thiese defects are cured by Parliament or by the State Governments, the Municipality did not have power to pass circulars to ban Hukka Smoking.
That is was Supreme Court said. It did not say that it approves or permits Hukka Smoking.
Proper Laws need to be passed.
Haresh Raichura
22/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 20, 2014
SC: "In last 40 Years, a new creed of litigants has cropped up..They shamelessly resort to falsehood..
In a reported case, Supreme Court observed as under:
"..... Truth constituted an integral part of the Justice delivery system which was in vogue in the pre-Independence era and people used to feel proud to tell truth in the courts irrespective of the consequences. However post-Independence period has seen drastic changes in our value system...
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals...
(He) who attempts to pollute the stream of justice (by resorting to falsehood) or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
Dilip Singh V. State of Utter Pradesh 2010(2)SCC 114 relied again in Nova Ads V. Metropolitan Transport Corpn in 2014(13) SCALE 768 para 47
Haresh Raichura
20/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
"..... Truth constituted an integral part of the Justice delivery system which was in vogue in the pre-Independence era and people used to feel proud to tell truth in the courts irrespective of the consequences. However post-Independence period has seen drastic changes in our value system...
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals...
(He) who attempts to pollute the stream of justice (by resorting to falsehood) or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
Dilip Singh V. State of Utter Pradesh 2010(2)SCC 114 relied again in Nova Ads V. Metropolitan Transport Corpn in 2014(13) SCALE 768 para 47
Haresh Raichura
20/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 16, 2014
A wonderful argument which shows how intelligent lawyers are
The convict was in Appeal.
Two courts had found that the man had committed crime, because after arrest, he made confession before Magistrate in court that in fact he had committed crime.
Both court had believed confession and other evidences.
In The Court various arguments were made. These were good arguments. But the most interesting argument appealed to me was on confession.
Counsel said,"This confession runs into 100 pages. The time noted below of confession is 11:00AM when confession was started and time was recorded 12:00PM when confession was ended. It is impossible to record 100 page confession in 1 hour."
The argument Prima facie made sense.
It is immaterial to state what happened further. The point is, hard work and intelligence have value in law profession.
Haresh Raichura
15/2/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/
Two courts had found that the man had committed crime, because after arrest, he made confession before Magistrate in court that in fact he had committed crime.
Both court had believed confession and other evidences.
In The Court various arguments were made. These were good arguments. But the most interesting argument appealed to me was on confession.
Counsel said,"This confession runs into 100 pages. The time noted below of confession is 11:00AM when confession was started and time was recorded 12:00PM when confession was ended. It is impossible to record 100 page confession in 1 hour."
The argument Prima facie made sense.
It is immaterial to state what happened further. The point is, hard work and intelligence have value in law profession.
Haresh Raichura
15/2/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/
After mortgaging property with Bank, property sold with permission of Bank.. Jurisdiction of Debt & Security Tribunals
There are Special Laws to protect properties mortgaged to Bank or Financial Institutes.
They are given harsh powers to attach and to auction such properties.
Civil courts have NO right to protect against such actions even if they be grossly illegal.
For this purpose, any aggrieved party has to approach to Tribunals set up under these laws only.
But a curious case happened.
After mortgaging property with bank, taking huge loan, after some years, the owner obtained permission letter from Bank to sell the property.
He sold the property to several buyers. Now several parties obtained rights in properties.
Later, after some years, Bank attached this property and also proceeded to auction it.
Various buyers filed suits in civil court for declaring their title, for injunction and also asking decorations that attachment by Bank Authorities was illegal.
The question arose :
Are these suits maintainable?
Who has jurisdiction to decide dispute when some disputes can be decided by only Tribunal and some disputes can be decided only by Civil Court?
Supreme Court held that so far as legality of Attachment Proceedings are concerned ONLY TRIBUNAL can decide.
But so far as other declarations are sought, parties can go to ONLY CIVIL COURT.
Thus prayers in the suits were split up.
And parties were given Liberty to reach appropriate forums.
Haresh Raichura
16/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C4/6/
They are given harsh powers to attach and to auction such properties.
Civil courts have NO right to protect against such actions even if they be grossly illegal.
For this purpose, any aggrieved party has to approach to Tribunals set up under these laws only.
But a curious case happened.
After mortgaging property with bank, taking huge loan, after some years, the owner obtained permission letter from Bank to sell the property.
He sold the property to several buyers. Now several parties obtained rights in properties.
Later, after some years, Bank attached this property and also proceeded to auction it.
Various buyers filed suits in civil court for declaring their title, for injunction and also asking decorations that attachment by Bank Authorities was illegal.
The question arose :
Are these suits maintainable?
Who has jurisdiction to decide dispute when some disputes can be decided by only Tribunal and some disputes can be decided only by Civil Court?
Supreme Court held that so far as legality of Attachment Proceedings are concerned ONLY TRIBUNAL can decide.
But so far as other declarations are sought, parties can go to ONLY CIVIL COURT.
Thus prayers in the suits were split up.
And parties were given Liberty to reach appropriate forums.
Haresh Raichura
16/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C4/6/
December 15, 2014
How Doctors in Govt Hospitals Cheat : Take Experience, Leave without resigning, File case on Govt
I heard a strange case which exposed how doctors in government hospitals cheat.
1) In Government hospitals they learn and obtain experiences by operating on the poor.
2) After they get expertise, they leave govt job and join some private hospitals which offer them big salaries. ...Here they play game....They do not give resignation. Nor do they inform their address to Govt Hospital.
3) After many days, when they do not report on duty, the Government sets up an inquiry to dismiss them. But since they have not given any address, govt cannot serve them dismissal orders.
4) After some years, these doctors file case in High Court stating that they are dismissed without following Natural Justice Procedure. They pray that they be reinstated in job and be given salary of all these years!
Strange! But some of them succeed also!
Haresh Raichura
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2PNMSr
1) In Government hospitals they learn and obtain experiences by operating on the poor.
2) After they get expertise, they leave govt job and join some private hospitals which offer them big salaries. ...Here they play game....They do not give resignation. Nor do they inform their address to Govt Hospital.
3) After many days, when they do not report on duty, the Government sets up an inquiry to dismiss them. But since they have not given any address, govt cannot serve them dismissal orders.
4) After some years, these doctors file case in High Court stating that they are dismissed without following Natural Justice Procedure. They pray that they be reinstated in job and be given salary of all these years!
Strange! But some of them succeed also!
Haresh Raichura
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2PNMSr
Strange Case: 1 Cheque Dishonoured, 3 Cases filed, Acquitted in 1, Convicted in 2 Cases
A post dated cheque was given.
Cheque was dishonoured on due date as there were no sufficient balance in bank account of person who had given cheque.
The holder of cheque filed 3 cases.
1) One case of cheating under Sec.420 of IPC.
2) Second case for dishonour of cheque under Sec.138 of Negotiable Instrument Act.
3) Third case, summary civil suit for recovery of amount.
Result.
1) Civil Case was dismissed on the ground that consideration for cheque was not proved. Holder of cheque had failed to prove for what purpose cheque was given.
2) He however succeeded in two other criminal cases. In both cases, they were tried as separate cases, and the person who had given cheque was convicted in both these cases.
Legal Point.
1) There in an error. In trial Court, both the criminal cases should have been tried together. Two trials were unnecessary.
2) The Different Judgements appear because STANDARD OF PROOF and PRESUMPTIONS are different in Civil Law and in Criminal Law.
Parties have now appealed in Supreme Court.
Haresh Raichur
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/32
Cheque was dishonoured on due date as there were no sufficient balance in bank account of person who had given cheque.
The holder of cheque filed 3 cases.
1) One case of cheating under Sec.420 of IPC.
2) Second case for dishonour of cheque under Sec.138 of Negotiable Instrument Act.
3) Third case, summary civil suit for recovery of amount.
Result.
1) Civil Case was dismissed on the ground that consideration for cheque was not proved. Holder of cheque had failed to prove for what purpose cheque was given.
2) He however succeeded in two other criminal cases. In both cases, they were tried as separate cases, and the person who had given cheque was convicted in both these cases.
Legal Point.
1) There in an error. In trial Court, both the criminal cases should have been tried together. Two trials were unnecessary.
2) The Different Judgements appear because STANDARD OF PROOF and PRESUMPTIONS are different in Civil Law and in Criminal Law.
Parties have now appealed in Supreme Court.
Haresh Raichur
15/12/14
Copyright : Haresh Raichura 2014. All Rights reserved. C2/32
December 14, 2014
Rights of Grand Parents against Sons & Daughters-in-law. Civil & Criminal
In India, there is still joint family system.
The quarrels are seen between Grand Parents Versus Sons / Daughters-in-Law.
The grand parents mainly complain two things : 1) Sometimes they are slapped or beaten up 2) Daily Abuses are hurled at them.
In addition they complain 3) Proper food is not given 4) Pressure is made on them to transfer their property in name of Son etc.
REMEDIES IN CRIMINAL LAW
A) For cruelty in nature of item 1) & 2) above, the grand parents can dial emergency number of police in case of emergency,
B) If there is no immediate danger, a proper criminal complaint should be filed in the court of Chief Judicial Magistrate.
REMEDIES IN CIVIL LAW
Under Sec.9 of CPC, Civil Courts can accept all type of suits.
For item 1) to 4) above mentioned problems, a civil suit for Declaration can be filed to seek Declaration from Court that the Sons and the Daughters-in-law have no right to hurl daily abuses at them and to slap them ..etc.
The Civil Court will probably immediately grant a stay order, will summon Sons and Daughters-in-Law in court and will hear their side.
Best advice is to seek help of court before aged parents become too weak to go to court.
If the grandparents are too aged and too weak to go to Court, some neighbour or some distant relative can also apply to court on behalf of such grandparents in trouble.
Seek professional advice of a lawyer.
Haresh Raichura
14/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
The quarrels are seen between Grand Parents Versus Sons / Daughters-in-Law.
The grand parents mainly complain two things : 1) Sometimes they are slapped or beaten up 2) Daily Abuses are hurled at them.
In addition they complain 3) Proper food is not given 4) Pressure is made on them to transfer their property in name of Son etc.
REMEDIES IN CRIMINAL LAW
A) For cruelty in nature of item 1) & 2) above, the grand parents can dial emergency number of police in case of emergency,
B) If there is no immediate danger, a proper criminal complaint should be filed in the court of Chief Judicial Magistrate.
REMEDIES IN CIVIL LAW
Under Sec.9 of CPC, Civil Courts can accept all type of suits.
For item 1) to 4) above mentioned problems, a civil suit for Declaration can be filed to seek Declaration from Court that the Sons and the Daughters-in-law have no right to hurl daily abuses at them and to slap them ..etc.
The Civil Court will probably immediately grant a stay order, will summon Sons and Daughters-in-Law in court and will hear their side.
Best advice is to seek help of court before aged parents become too weak to go to court.
If the grandparents are too aged and too weak to go to Court, some neighbour or some distant relative can also apply to court on behalf of such grandparents in trouble.
Seek professional advice of a lawyer.
Haresh Raichura
14/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 10, 2014
3 Reasons why it is very difficult to STOP new Irbm law(Irretrievably broken marriages)
It is very difficult to stop new proposed amendment in Hindu Marriage Law for some obvious reasons.
1) There is a moral pressure from Supreme Court to persuade law makers to add new ground for divorce, namely "Irretrievable Breakdown of marriage.
2) It is seen that wife never agrees to give divorce. Husband is unable to prove any fault of wife and is therefore not able to get divorce...Even if the marriage may have broke down... Law cannot force husband and wife to live together if one of them disagrees.
The new law gives husband a right to get divorce even if he is not able to prove any fault of wife.
3) When husband goes to court on ground that their marriage is broken since three years and he wants divorce even if there is no fault of wife, then the court may give him divorce subject to some financial compensation to wife.
The amount of compensation is left on court to decide. There is no guidelines. But judge will take overall stock of financial position of husband before deciding compensation.
There is no strict provision that Judge will grant wife any share from property of husband or his father in law... All is left to the wisdom of Judge.
This may be an experimental law.
If there is abuse, higher courts are trusted to correct errors.
Haresh Raichura
10/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
1) There is a moral pressure from Supreme Court to persuade law makers to add new ground for divorce, namely "Irretrievable Breakdown of marriage.
2) It is seen that wife never agrees to give divorce. Husband is unable to prove any fault of wife and is therefore not able to get divorce...Even if the marriage may have broke down... Law cannot force husband and wife to live together if one of them disagrees.
The new law gives husband a right to get divorce even if he is not able to prove any fault of wife.
3) When husband goes to court on ground that their marriage is broken since three years and he wants divorce even if there is no fault of wife, then the court may give him divorce subject to some financial compensation to wife.
The amount of compensation is left on court to decide. There is no guidelines. But judge will take overall stock of financial position of husband before deciding compensation.
There is no strict provision that Judge will grant wife any share from property of husband or his father in law... All is left to the wisdom of Judge.
This may be an experimental law.
If there is abuse, higher courts are trusted to correct errors.
Haresh Raichura
10/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 8, 2014
There is no question of Supreme Court exceeding its Jurisdiction - 3 Brief Reasons
In a recent blog, it is contended that Supreme Court is exceeding its Jurisdiction and it is interfering in policymaking domain of executives.
In support of above contentions,three points are cited :
1) Supreme Court should NOT monitor Gangs Cleaning Project.
2) Supreme Court Should NOT have set up Social Justice Bench. These are all government's policy decisions.
3) Supreme Court has NO power to select investigators or prosecutors in sensitive cases.
My answers are follows:
1) All so called River Cleaning Projects have potentials to become scams. Cleaning chemicals and sand dropped in water are washed away. No way to verify. Crores of rupees of public money are debited on this account by manipulating payment vouchers. In past, Supreme Court has found such scam in Yamuna Water Cleaning Project, Taj Mahal, etc. When a PIL is filed, it is duty of Supreme Court to monitor it to protect public money.
2) Setting up a Social Justice Bench is purely an administrative order by CJI to allot certain category of cases to a particular Bench. There is nothing new in it. The cases which are pending before different courts will now be heard by one court to maintain consistency.
3) Thirdly, About power to for Special Investigation Teams and to appoint prosecutors are decided in previous cases after lengthy debates. The law is settled here.
The General principle is, in any area, where, Executive or Legislative are not doing what they ought to be doing' when they are not taking any decision one way or other, Supreme Court and High Courts can step in.
Haresh Raichura
8/12/14
Copyright Haresh Raichura. All rights reserved.
December 7, 2014
In India, many judges consider it waste of time to hear arguments on husband side- Some Possible Reasons
There are some realities.
1) India is still a male dominated society.
2) There are still incidents of killing girl child in womb.
3) Only recently daughters have been given equal share as sons in properties. Rights of married daughters are still vague.
The law is trying to give them equal playing field.
1) In husband wife suits, as soon as case is filed, husband is to first provide and pay for monthly maintenance to wife and to provide for his legal expanses.
Here, judges may consider it waste of time to hear objections by a rich and capable husband.
Here, there are chances of injustice where, husband's financial condition is also weak.
Sometimes, marriage is broke solely due to brazen fault of wife and her relatives.
To grant such amounts to wife is like paying premium to a wrong-doing wife. The very soul of husband revolts against paying such ransom.
Here, judge may refuse to hear husband by saying ,"This is not the stage to hear merits of your case. First pay maintenance to wife, and then argue this when case is ripe for hearing".
This is probably an Error of Judiciary.
But it can only be corrected by a High Court by Supreme Court in some appropriate case.
But unfortunately, cases relating to interim maintenance are not accepted by Supreme Court and rarely accepted by High Courts.
So only time can heal the wounds of husbands.
He deserves permission to argue merits of his case and demerits of wife's case at interim maintenance stage also.
There is no harm in letting him expose what disentitles wife to ask for interim maintenance.
Haresh Raichura
7/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 6, 2014
What do we can reasonably EXPECT from SOCIAL JUSTICE BENCH of Supreme Court? -a brief note
From December 12th, 2014, we may see a SOCIAL JUSTICE BENCH in Supreme Court to hear cases relating to social injustice.
What do we can reasonably expect from this Bench? Here are some of my views.
1) There are cases, where one class of citizens is suffering injustice at another class of citizens. Large population of one class is suffering injustice, but very few cases come to notice of Supreme Court. Because, class litigation is yet not popular in India. In a class litigation, any Four Citizens can file suit or PIL for seeking justice for entire class. Few people in India are aware about these provisions. Hence few Class Litigations are coming to Court.
2) Few years ago, Justice S.B.Sinha, laid down in a judgement, that if Supreme Court deems it fit, it can convert any private litigation into a class litigation or public interest litigation and then it can lay down justice for the whole class of population.
3) These are cases mostly, where one class of citizens is claiming some relief against another class of citizens.
4) The Special Bench may devote one Friday each week to hear such cases only. Here , larger public interest cases are given priority over individual interest cases. Each judgement is bound to benefit a large class of population.
We can reasonably expect that social justice will be speedier for many class of citizens.
Haresh Raichura
6/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
What do we can reasonably expect from this Bench? Here are some of my views.
1) There are cases, where one class of citizens is suffering injustice at another class of citizens. Large population of one class is suffering injustice, but very few cases come to notice of Supreme Court. Because, class litigation is yet not popular in India. In a class litigation, any Four Citizens can file suit or PIL for seeking justice for entire class. Few people in India are aware about these provisions. Hence few Class Litigations are coming to Court.
2) Few years ago, Justice S.B.Sinha, laid down in a judgement, that if Supreme Court deems it fit, it can convert any private litigation into a class litigation or public interest litigation and then it can lay down justice for the whole class of population.
3) These are cases mostly, where one class of citizens is claiming some relief against another class of citizens.
4) The Special Bench may devote one Friday each week to hear such cases only. Here , larger public interest cases are given priority over individual interest cases. Each judgement is bound to benefit a large class of population.
We can reasonably expect that social justice will be speedier for many class of citizens.
Haresh Raichura
6/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
December 5, 2014
Hate Speech Laws do not apply to something said in Parliament or in Legislative Assembly because
Hate Speech Laws do not apply to something said in Parliament or in Legislative Assembly because general laws do not apply to proceedings in Parliament or Assembly.
These are themselves law makers. The House makes its own law and it has its own power to punish what happens in House.
Courts or Police have no jurisdictions inside House.
Haresh Raichura
5/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
These are themselves law makers. The House makes its own law and it has its own power to punish what happens in House.
Courts or Police have no jurisdictions inside House.
Haresh Raichura
5/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
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