Court Life

S.C: Schools are no money minting teaching shops

qualandar — Tue, 23 Feb 2010 06:40:29 +0000

Human Resource Development Minister: Shri Kapil Sibbal

Our Government did not know that education is not a commercial enterprise or at least has been affectating it to be so.

Mr. Kapil Sibbal gave out the truth in his un-guarded moment. He said that private institutions are at liberty to fix their fees.

Really , Coctail of over riding personal greed of politicians and party interest over interest of citizens is lethal .

My question is that do those who even do not have working knowledge or disregard our Constitution have the propriety to usurp offices of lawmakers?

Our Supreme Court has made it clear umpteen times that charging capitation fee is patent denial of citizen’s right to education as per Constitution.

Freedom to devise fee structure does not envisage free run to convert institutions into teaching shops with profiteering motive, to extort money by way of exorbitant fees and capitation fees.

The object of allowing private schools is to promote education and not commercialise it.

Please refer Supreme Court Judgements: Mohini Jain vs State of Karnataka 1992. & P.A Inamdar vs State of Maharashtra 2005.

Communal Violence Bill 2009

qualandar — Sun, 21 Feb 2010 07:02:22 +0000

Communal right scene

Prominent Moslems and rights groups are opposing the Bill stating that Bill would victimise Victims all the more and shield perpetuators all the more. The Bill does not define ‘crime’ as applicable to communal violence and declares places targeted by marauding mob as desturbed which expose the victims to police excess. Several Organistions has threatened nation vide stir against the Bill.

Bomay High Court: Post dated cheques are a passe

qualandar — Sat, 20 Feb 2010 14:23:32 +0000

Blank and post dated cheques are a passe now. Borrowers from whom financial institutions or money lenders have obtained blank or post dated cheques as security can no longer be prosecuted under section 138 of N.I. Act according to latest Bombay High Court judgement delivered by Justice P.K. Borkar.

Law makers could not have intended or condoned the modus operandi adopted by money lenders ruled the honble judge.

Date of judgement: 19.02.10, petitioner: Ramkrishna Urban Cooperative Society. Respondent: Rajender Verma.

2 returns from death row. New DNA finger printing tehnnology

qualandar — Fri, 19 Feb 2010 17:19:24 +0000

S.C: Superior courts can orderCBI probe

qualandar — Thu, 18 Feb 2010 15:19:16 +0000

Politician sponsored murders and mayhems is no passe

A five judge constitution bench headed by Chief Justice of Supreme Court K.G Balakrishnan dismissing an Appeal filed by Government of West Bengal in Midnapore massacre case, ruled that superior courts can order CBI probe into a case without the consent of a state government using their sound descretion despite Law and Order being in the State List and mandatory provisions in Special Police Establishment Act. The Bench evoked powers granted by Article 32 and 226 of Constitution of India which obligates superior courts to protect fundamental rights of citizens. Bench:C.J, K.G Balakrishnan, justices R.V Ravindran, D.K. Jain, P Sathasenam, J.B Panchal. Attorney General: Goolam Vahanvati.

Supreme Court cures a mischief in Cheque Bounce law of India

qualandar — Tue, 16 Feb 2010 16:40:44 +0000

A Bench comprising Hon’ble justices Mr. Sathavisam and Mr. H.L Dattu of Supreme Court of India’s cures mischief of Section 41 of Negotiable Instrument Act in case involving National Small Industries Corporation which did not distinguish between unclean and unclean delinquent directors of a company.

Managing Director or Joint Managing director can presumed to be responsible and in charge of affairs of business of a company therefore vicariously liable for bouncing of cheque. No specific averment necessary in compliant to this effect.

But no presumption in law exists as to directors of a company as to their vicarious liability so far cheque bounce cases are concerned… Complainant must plead and prove that director sought to be arraigned was indeed responsible and in charge of affairs of the company therefore in knowledge of the cheque that has bounced.

Section 141 of Negotiable Instrument Act relates to companies:

“141. Offences by companies.
1[Offences by companies.

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and proceeded against and punished accordingly];

Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.

2["Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attribute to, any neglect on the part of, any director, Manager, secretary, or other office of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: For the purpose of this section. -

(a) “Company” means any body corporate and includes a firm or other association of individuals; and

(b) “Director”, in relating to a firm, means a partner in the firm.“

“

Personal vindictiveness blocks Justice elevation to Supreme Court.

qualandar — Mon, 15 Feb 2010 16:01:17 +0000

Gays welcoming Justice Shah's judgement

Elevation of one of India’s finest justices Mr. Ajit Prakash Shah blocked buy Supreme Court of India Justice Mr. Kapadia actuated by personal vendetta – over my dead body attitude – over an old tiff they had when the two were on Mumbai Bench.

With chances of alternate absorption in Law Commission also becoming dim on the face of the fact that Justice Kapadia is slated to become the next Chief Justice of India and his unforgiving and open vindictive attitude towards Mr. Shah, Mr. Shah has opted to work for the handicapped in Prakash Amte’s ashram in Maharashtra.

Justice Shah is credited with many underdogs and marginalized friendly judgments, the latest one this week where he ruled homeless dwellers living in huts on Govt.lands cannot be uprooted without being provided alternative accommodations.

He is also credited with decriminalization of same gender sexuality.

The attitude and naked vindictiveness and unjust attitude of Justice Kabadia has brought the highest court under reproach of common man.

I have always known Justice Shah as Man of Heart, not because of his judgments of which I have never been a follower for want of time but because in his every address I happen to be an audience he touched my heart. Without fail in every speech he motivated we lawyers towards generosity, charity, social activism and social work. In the law day function this year he set a term with our bar that the function should feature an oath ceremony. He administered an oath on moral rectitude and respect to law, constitution and professional ethics.

Membership of 2000 lawyers removed from Supreme Court

qualandar — Sat, 13 Feb 2010 16:46:05 +0000

Supreme Court Bar Association has cancelled 2000 new membership of lawyers on account of large scale corruption and irregularities committed allegedly by the removed secretary of the former executive commitee

A new committee : Interim Board of Management comprising of three ex presidents: K.K. Venugopal, P.P. Rao and P.H. Parekh has been formed to look after the affairs of the Bar and new membership suspended till the next election of new Bar Association takes place somewhere in June 2010.

In a bid to swell the vote bank a membership drive was launched which saw 2000 new members and their membership fees of Rs. 5000/- or Rs. 10,000 paid by few individuals through their bank accounts through bulk purchase of postal orders and forms.

The interview of incumbents were so swift that that interview of 1485 applicants were completed in just 270 minutes.

Probation of Offenders Act 1958

qualandar — Sat, 13 Feb 2010 09:16:44 +0000

PROBATION OF OFFENDERS ACT 1958

THE PROBATION OF OFFENDERS ACT, 1958

ACT NO. 20 OF 1958AAN ACT TO PROVIDE FOR THE RELEASE OF OFFENDERS ON PROBATION

OR AFTERDUE ADMONIT

[16th May, 1958.]

Short title extent and commencement.

1. Short title extent and commencement. (1) This Act may be called the Probation of Offenders Act, 1958.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force in a State on such date as the State Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different parts of the State.

Definitions. 2. Definitions. In this Act, unless the context otherwise requires,- (a) “Code” means the Code of Criminal Procedure, 1898 (5 of 1898); (b) “probation officer” means an officer appointed to be a probation officer or recognised as such under section 13; (c) “prescribed” means prescribed by rules made under this Act ; (d) words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1898 5 of 1898). shall have the meanings respectively assigned to them in that Code.

Power of court to release certain offenders after admonition. 3. Power of court to release certain offenders after admonition. When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860.) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then. notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

———————————————————————- 1 Madras (1.12.62) Vide Home Dept. No. G.O. MS No.3698, dt. 2.11.62. Amended in Maharashtra by Mah. Act 31 of 1969. Extended to and brought into force in Dadra and Nagar Haveli (w.e.f. 1.7.65) by Reg. 6 of 1963, s. 2 and Sch.I. Extended to the Union territory of Pondicherry by Act 26 of 1968, S. 3 and Schedule. Extended to Goa, Daman and Diu by Reg. 11 of 1973, s.3 & Sch. ———————————————————————– 734 Explanation.-For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Power of court to release certain officers on probation of good conduct. 4.Power of court to release certain officers on probation of good

conduct. (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 735

Power of court to require released offenders to pay compensation andcosts. 5. Power of court to require released offenders to pay

compensation and costs.(1) The Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay- (a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence ; and (b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account

any amount paid or recovered as compensation under sub-section (1) in awarding damages.

Restrictions on imprisonment of offenders under twenty-one years ofage. 6. Restrictions on imprisonment of offenders under twenty-one

years of age. (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprison- ment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender

referred to in sub-section (1), the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

Report of probation officer to be confidential. 7. Report of probation officer to be confidential. The report

of a probation officer referred to in sub-section (2) of section 4 or

sub-section (2) of section 6 shall be treated as confidential: Provided that the court may, if it so thinks fit, communicate the substance thereof to the offender and may give him an opportunity of producing such evidence as may be relevant to the matter stated in the report.

Variation of conditions of probation.

8. Variation of conditions of probation. (1) If, on the application of a probation officer, any court which passes an order under section 4 in respect of an offender is of opinion that in the interests of the offender and the public it 736 is expedient or necessary to vary the conditions of any bond entered into by the offender, it may, at any time during the period when the bond is effective, vary the bond by extending or diminishing the duration thereof so, however, that it shall not exceed three years from the date of the original order or by altering the conditions thereof or by inserting additional conditions therein: Provided that no such variation shall be made without giving the offender and the surety or sureties mentioned in the bond an opportunity of being heard.

(2) If any surety refuses to consent to any variation proposed

to be made under sub-section (1), the court may require the offender to enter into a fresh bond and if the offender refuses or fails to do so, the court may sentence him for the offence of which he was found guilty.

(3) Notwithstanding anything hereinbefore contained, the court which passes an order under section 4 in respect of an offender may, if it is satisfied on an application made by the probation officer, that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision, discharge the bond or bonds entered into by him.

Procedure in case of offender failing to observe conditions of bond. 9. Procedure in case of offender failing to observe conditions of

bond.

(1) If the court which passes an order under section 4 in res- pect of an offender or any court which could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend before it at such time as may be specified in the summons.

(2) The court before which an offender is so brought or appears may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.

(3) If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may forthwith- (a) sentence him for the original offence; or (b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the court may sentence the offender for the original offence. 737

Provision as to sureties. 10. Provision as to sureties. The provisions of sections 122, 126, 126A, 406A, 514, 514A, 514B and 515 of the Code shall, so far as may be, apply in the case of bonds and sureties given under this Act.

Courts competent to make order under the Act, appeal and revision andpowers of courts in appeal and revision. 11. Courts competent to make order under the Act, appeal and

revision and powers of courts in appeal and revision. (1) Notwithstanding anything contained in the Code or any other law, an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty.

Removal of disqualification attaching to conviction. 12. Removal of disqualification attaching to conviction. Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence.

Probation officers.

13. Probation officers. (1) A probation officer under this Act shall be- (a) a person appointed to be a probation officer by the State Government or recognised as such by the State. Govern- ment ; or 738 (b) a person provided for this purpose by a society recognised in this behalf by the State Government; or (c) in any exceptional case, any other person who, in the opinion of the court, is fit to act as a probation officer in the special circumstances of the case.

(2) A court which passes an order under section 4 or the district magistrate of the district in which the offender for the time being resides may, at any time, appoint any probation officer in the place of the person named in the supervision order. Explanation.-For the purposes of this section, a presidency town shall be deemed to be a district and chief presidency magistrate shall be deemed to be the district magistrate of that district.

(3)A probation officer, in the exercise of his duties under this Act, shall be subject to the control of the district magistrate of the district in which the offender for the time being resides.

Duties of probation officers. 14. Duties of probation officers. A probation officer shall, subject to such conditions and restrictions, as may be prescribed,- (a) inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and submit reports to the court ; (b) supervise probationers and other persons placed under his supervision and, where necessary, endeavour to find them suitable employment ; (c) advise and assist offenders in the payment of compensa- tion or costs ordered by the court ; (d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released under sec- tion 4; and (e) perform such other duties as may be prescribed.

Probation officers to be public servants. 15. Probation officers to be public servants. Every probation officer and every other officer appointed in pursuance of this Act shall, be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

Protection of action taken in good faith. 16. Protection of action taken in good faith. No suit or other legal proceeding shall lie against the State Government or any probation officer or any other officer appointed under this Act in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder. 739

Power to make rules.

17. Power to make rules. (1) The State Government may, with the approval of the Central Government, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: – (a) appointment of probation officers, the terms and conditions of their service and the area within which they are to exercise jurisdiction; (b) duties of probation officers under this Act and the submission of reports by them ; (c) the conditions on which societies may be recognised for

the purposes of clause (b) of sub-section (1) of section 13 ; (d) the payment of remuneration and expenses to probation officers or of a subsidy to any society which provides probation officers ; and (e) any other matter which is to be, or may be, prescribed.

(3) All rules made under this section shall be subject to the condition of previous publication and shall, as soon as may be after they are made, be laid before the State Legislature.

Saving of operation of certain enactments. 18. Saving of operation of certain enactments. Nothing in this Act shall affect the provisions of section 31 of the Reformatory

Schools Act, 1897 (8 of 1897), or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 (2 of 1947), 1* * *, or of any law in force in any State relating to juvenile offenders or borstal schools

High Court of Delhi permits parole of convicts for preparation of cases

qualandar — Sat, 13 Feb 2010 08:46:22 +0000

Hon’ble Justice Mr. V.K. Jain in a landmark judgment has rejected Delhi Government Order that refused Parole to life convict Mr. Chintu Malhotra stating that availability of free legal services to convicts is no ground to decline Parole.

Delhi Government had refused Parole to the convict Chintu Malhotra – now lodged in maximum security prison: Tihar Jail in Delhi, on the ground that he need not come out of jail to file appeal to Supreme Court of India as free legal aid is available to prisoners in jail.

The court said the convict has a right to hire a private lawyer and prepare his case.

This has come as much relief to me and one of my clients Mr. Safi whose petition seeking Parole for preparation of his case and helping his two sons prepare for their CBSE examinations is now pending with Delhi Administration… Safi is now serving life term in Tihar Jail. He was sentenced on 28.Jan 2010 by Ld. Session court of Mrs. Pinky.

Parole Guide Lines in Delhi

The Delhi government, which had come under fire for granting parole to Manu Sharma in Jessica Lall murder case, on 20.01.2010 came out with fresh guidelines regarding Parole relief saying convicts involved in offences like sedition and whose release on parole has serious repercussion on national security should not be given the facility.

Appearing for the NCT government, Solicitor General Gopal Subramanium had furnished a copy of the drafted guidelines for the court’s approval and said only the Lieutenant Governor has the power to grant parole. “Convicts whose release on parole is considered to be dangerous or a threat to national security…And prisoners who have been involved in crimes and offences against the state like sedition or who have been found to be instigating serious violation of prison discipline would not be eligible for being released on parole,” the senior counsel said. Besides, “prisoners who have been convicted for murder and rape of minor children, murder after rape, not citizen of India and who have escaped from jail also will not be granted parole,” the Solicitor told the court.

Denying the allegation that the government grants parole to rich prisoners and ignores the applications of the poor, Subramaniam said that in the guidelines it was suggested that the application for parole has to be decided not beyond three weeks and the parole period should not exceed more than a month.

The Delhi government, which had come under fire for granting parole to Manu Sharma in Jessica Lall murder case, on Wednesday came out with fresh guidelines to give the relief saying convicts involved in offences like sedition and whose release on parole has serious repercussion on national security should not be given the facility. Appearing for the NCT government, Solicitor General Gopal Subramanium furnished a copy of the drafted guidelines for the court’s approval and said only the Lieutenant Governor has the power to grant parole. “Convicts whose release on parole is considered to be dangerous or a threat to national security…And prisoners who have been involved in crimes and offences against the state like sedition or who have been found to be instigating serious violation of prison discipline would not be eligible for being released on parole,” the senior counsel said. Besides, “prisoners who have been convicted for murder and rape of minor children, murder after rape, not citizen of India and who have escaped from jail also will not be granted parole,” the Solicitor told the court.