Centre & States must stop passing on the burden on one another for time-bound payment of wages: SC
[Swaraj Abhiyan (VI) v. Union of India, 2018 SCC OnLine SC 578, decided on 18.05.2018]
Delay in payment of wages and compensation to the beneficiaries under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (Act) and the Scheme framed thereunder
One entity cannot pass on the burden to another and vice versa
OBSERVATION OF THE COURT
The Court said that in terms of the Act and Schedule II thereof a worker is entitled to payment of wages within a fortnight of the date on which the work was done. Failing which the worker is entitled to the compensation as prescribed in paragraph 29 of the Schedule II of the Act.
CONTENTION OF THE CENTRAL GOVT.
On Central Government’s argument that it has no responsibility after the second signature is placed on the Fund Transfer Orders, the Court said:
Mere receipt of a notice by Collector doesn’t allow the prohibition under Section 15(12) of UP Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 to come into play: SC
[Kiran Pal Singh v. State of Uttar Pradesh, 2018 SCC OnLine SC 547, decided on 17.05.2018]
Once a notice is given under Section 15(2) of Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, another notice of no confidence shall not be received until after expiration of one year
OBJECTIVE OF THE ACT
Explaining the legislative intend behind the Act, the Court said that the legislature being empowered by the Constitution has legislated to provide for the establishment of Kshettra Panchayats and Zila Panchayats in the Districts of Uttar Pradesh to undertake certain Governmental functions at Kshettra and District levels respectively in furtherance of the principles of democratic decentralisation of Governmental functions. Stating that the Act intends to empower the Panchayats, the Court explained:
“Section 9 clearly provides that the term of the office of Pramukh is for five years from the date appointed for its first meeting. That brings stability to the administration of the Gram Panchayat. Simultaneously, it also provides that the democracy at the rural level must cherish the values of democracy and, therefore, a Pramukh can be removed when a vote of no confidence is passed against him. Once the no confidence motion fails, it cannot be brought again for one year. It is worthy to note here that subsection (13) of Section 15 provides that no notice of a motion under Section 15 shall be received within two years of the assumption of office by a Pramukh.”
The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr, DY Chandrachud, JJ held that the prohibition under Section 15(12) would only come into play when there is meeting and the motion is “not carried out” as per the provisions of Section 15 or meeting could not be held for want of quorum. It said:
“Mere receipt of a notice by the Collector will not allow the prohibition under Section 15(12) to come into play. That is not the purpose of the provision.”
Hence, it was held that the scheme of the Act and Section 15 is in consonance with the principle of stability of rural governance. [Kiran Pal Singh v. State of Uttar Pradesh, 2018 SCC OnLine SC 547, decided on 17.05.2018]
ALLAHABAD HIGH COURT
Decree of divorce by mutual consent is appealable where the consent itself is disputed
[Pooja v. Vijay Chaitanya, 2018 SCC OnLine All 513, dated 06.04.2018]
An appeal filed by the wife against the decree of divorce by mutual consent, was allowed by a Division Bench comprising of Pankaj Mithal and Rajiv Joshi, JJ.
A decree was passed by the family court under Section 13-B of Hindu Marriage Act (HMA), 1955 for dissolution of the marriage of the appellant-wife and her husband by mutual consent. The wife preferred the appeal under Section 28 HMA read with Section 19 of Family Courts Act 1984, against the said decree contending that her consent was obtained by undue influence.
The question before the Court was ‘whether an appeal under Section 19 of Family Courts Act would lie against a decree passed under Section 13-B HMA?’
The Court perused Section 13-B and held that a decree of divorce by mutual consent could be passed by the Court only if all the conditions mentioned under the said Section are complied with. The Court referred to Section 23(1) (bb) and relying on Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, held that before passing a decree under Section 13-B, the Court must satisfy itself that the consent of the parties was not obtained by coercion, fraud or undue influence. Further, Section 28 HMA did not place any rider on appeals against a consent decree under the Act. In light of the discussion as mentioned herein, the Court admitted the appeal and directed the issuing of notice to the respondent. [Pooja v. Vijay Chaitanya, 2018 SCC OnLine All 513, dated 06.04.2018]
BOMBAY HIGH COURT
Sentence of a ‘rape convict’ reduced in light of mitigating circumstances
[Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03.05.2018]
The sentence of the appellant who was convicted for kidnapping and rape, was reduced to the period already undergone by him, by a Single Judge Bench comprising of K.K. Sonawane, J.
The appellant was accused of forcibly taking away the prosecutrix (victim), who was a minor at the time of incident. She was taken away on the pretext of marriage and the appellant had sexual intercourse with her a number of times during that period. The appellant was charged under Section 361 read with Section 363, Sections 366 and 376 IPC. He was convicted by the trial court for the offences charged under. The appellant challenged the order of the trial court.
On considering the record, the High Court found that at the relevant time, the victim was 14 years of age. It was proved by the School Leaving Certificate signed by the Headmaster of the School.
ADDUCING THE EVIDENCE
The evidence led by the prosecution and the statement of witnesses proved that the appellant kidnapped the victim and therefore committed the offence under Section 361 read with 363 IPC.
Further, the fact of the appellant having sexual intercourse with the victim was proved by the medical report.
And since the victim was below 16 years of age, therefore, her consent doesn’t count and the appellant was guilty of offences under Sections 366 and 376.
However, the facts remained that the victim never raised alarm as to her kidnapping, never informed or tried to contact her family, lived with the appellant as husband and wife, and also that the appellant was a youngster, 24 years old, at the time of commission of the offence.
The High Court finally upheld the conviction of the appellant; however, his sentence was reduced to the period already undergone by him in light of the mitigating circumstances as noted hereinabove. Thus, the appeal was partly allowed. [Bapu v. State of Maharashtra, 2018 SCC OnLine Bom 920, dated 03.05.2018]
Conviction set aside as accused succeeded in establishing probable defence
[Sadashiv v. State of Maharashtra, 2018 SCC OnLine Bom 983, dated 10-5-2018]
A criminal appeal challenging the judgment of the trial court, whereby the appellant was convicted of offence under Prevention of Corruption Act, was allowed by a Single Judge Bench comprising of M.G. Giratkar, J.
The appellant, who was working in the Office of District Dairy Officer, was accused of taking bribe from the complainant, who was the Chairman of Janta Milk Dairy Society. The Anti Corruption Bureau (ACB), along with the complainant, laid trap and caught the appellant for taking bribe of Rs. 1000. Appellant was charged and convicted by the trial court for the offences under Section 13(1)(d)(i)(ii) read with Section 13(2) of the Prevention of Corruption Act 1988. The appellant challenged the said decision.
OBSERVATION OF HC
The High Court perused the record and found that no specific allegation was made that the appellant took the amount of bribe from the accused.
The panch witness did not by themselves saw the appellant taking the bribe.
The Court observed that burden of proof is not so heavy on the accused as it is on the petitioner. An accused just has to prove a probable defence. In the facts of the instant case, where evidence was not such that could prove appellant’s guilt beyond reasonable doubt.
CONTENTIONS OF APPELLANT
The appellant contended that he was falsely implicated in the case by his senior officer. Even the complainant stated in his evidence that he filed the complaint with ACB on behest of the said senior officer.
The Court held that the appellant succeeded in putting up a probable defence that he was falsely implicated at the behest of his senior officer. Therefore, the appeal was allowed and the impugned order was set aside. [Sadashiv v. State of Maharashtra, 2018 SCC OnLine Bom 983, dated 10-5-2018]
Arrest in violation of Section 46(4) CrPC would amount to “illegal arrest”
[Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095, dated 10.05.2018]
In a Writ Petition seeking a writ of Mandamus, the Division Bench comprising of S.J. Kathawalla and Bharti H. Dangre, JJ., decided that non-adherence to the provisions of Section 46(4) of the Criminal Procedure Code would absolutely amount to illegal arrest.
CONTENTIONS OF THE PETITIONER
The petitioner was one of the accused in the most talked about case “PNB Scam”, it has been contended by the petitioner that she was called for an investigation in the said case by the respondent-CBI for which she duly cooperated with the investigation agency.
Petitioner was arrested at about 8 p.m. after which she was produced before of the Special Judge. Petitioner claims that she had invited the attention of the Special Judge towards her case of illegal arrest wherein she pointed out that her arrest violated the ambit of Section 46(4) of the said Act, though the Special Judge ignored the fact of illegal arrest and proceeded by remanding the petitioner to the custody of the respondent-CBI for a period of 14 days.
Learned counsel for the petitioner had drawn the attention of the Court by giving due explanation of the violation of Section 46(4) of the Criminal Procedure Code in Chapter V that the arrest was absolutely illegal in terms that it has been clearly explained in Section 46 for “Arrest how made”. The said provision is salutary one which provides safeguard against the arrest of a woman after sunset and before sunrise and as per the learned counsel, the safeguards have to be strictly adhered to.
OBSERVATION OF THE COURT
Therefore, the Hon’ble High Court on recording the contentions of the petitioner and noting the facts and circumstances of the case, briefed about the point that the precious guarantee of ‘Life and Liberty’ enshrined in Article 21 of the Constitution of India cannot be denied to a convict or accused on a trial and it is an obligation upon State to ensure that there is no infringement of the right of the citizen.
Further, the Court concluded by stating that any deviation from the prescribed procedure in the manner of arrest can therefore, be not countenanced and is liable to be declared as illegal.
Allowing the writ petition , it was held that the officials who were responsible for the violation of the Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset, will be liable for disciplinary proceedings. [Kavita Manikikar v. CBI, 2018 SCC OnLine Bom 1095, dated 10.05.2018]
CALCUTTA HIGH COURT
- An order bereft of reasons is no order in eyes of the law
[Ram Sankar Sahoo v. State of W.B., 2018 SCC OnLine Cal 3199, dated 15.05.2018]
A petition filed against the decision of the State Authorities canceling the food supply license granted to the petitioner was allowed by a Single Judge Bench comprising of Harish Tandon, J.
The petitioner’s license was canceled by the respondents on the ground that he violated the provisions of the West Bengal Kerosene Control Order. An inspection was conducted by the respondents at the premises of the petitioner and thereafter, the Sub-Division Officer (F&S) issued a show cause notice to the petitioner. Subsequently, the petitioner’s license was canceled. Such order of cancellation is challenged.
OBSERVATION OF THE HC
The High Court perused the record and inter alia found that the said order was passed without recording any reasons for cancellation of petitioner’s license.
It was observed that in any adjudication it is imperative to record reasons for passing such order; an order which is bereft of any reasons is no order in the eyes law. Reasons are heart and soul of an order without which it cannot survive.
In the instant case, the order punishing the petitioner was passed by respondents without giving adequate reasons for the said adjudication.
According to the High Court, the impugned order, being bereft of reasons was liable to be set aside, which was accordingly ordered. [Ram Sankar Sahoo v. State of W.B., 2018 SCC OnLine Cal 3199, dated 15.05.2018]
CHATTISGARH HIGH COURT
Conviction modified in light of accused being in a drunken condition at the time of the incident
[Hulas Singh v. State of M.P., 2018 SCC OnLine Chh 512, dated 18.05.2018]
Conviction of the appellant (accused) under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was set aside by a Single Judge Bench comprising of Arvind Singh Chandel, J. while upholding his conviction under Section 323 IPC.
The appellant was accused of abusing the complainant referring to his caste and also giving a fist blow on his chest. It was alleged that the appellant was shouting and creating nuisance at the bus stop, and when the complainant tried to stop him, he abused the complainant and assaulted him. The appellant denied the allegations and submitted that at the time of the incident, he was in a drunken condition. He challenged the decision of the trial court whereby he was convicted and sentenced under the section mentioned hereinabove.
OBSERVATION OF THE HC
The High Court, on considering the record, found that the medical expert who examined the appellant right after the incident stated that the appellant was in a drunken condition and he was staggering and stuttering while speaking.
The Court held that while in a drunken condition, even if the appellant abused the complainant referring to his caste, it was not established that the appellant did so with an intent to humiliate the complainant. In such circumstances, the offense under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 couldn’t be proved against the appellant beyond reasonable doubt. Therefore, the appellant was acquitted of the said charge. However, his conviction under Section 323 IPC as decided by the trial court was upheld. The appeal was disposed of accordingly. [Hulas Singh v. State of M.P., 2018 SCC OnLine Chh 512, dated 18.05.2018]
Bail granted on the basis of time lapse of 3 months in filing a complaint
[Bandhan Jagte v. State of Chhattisgarh, 2018 SCC OnLine Chh 390; dated 05.04.2018]
The Single Judge Bench comprising of Arvind Singh Chandel, J., granted regular bail to an offender charged under Sections 366, 376(2) (n), 342/34 of the Penal Code.
The brief facts of the case are that the prosecutrix had lodged a complaint against the applicant who had forcibly asked her to marry him and later when the prosecutrix went to complain about the same, she was taken by her brother-in-law (co-accused) to a lodge where she stayed along with him where he committed rape with her and it continued. Later on, it was discovered on the collection of some information that the applicant was already married.
CONTENTIONS OF THE APPLICANT
The submissions of the learned counsel for the applicant states that the applicant was falsely implicated in the case as the prosecutrix was a consenting party in the present case and taking due reference through these submissions he has prayed for bail of the applicant.
The Hon’ble High Court on taking due consideration from the facts and circumstances of the case along with the contention of the applicant’s counsel, observed that the prosecutrix being a major girl had on her own will stayed with the applicant at the lodge and the crux of the case is that she took 3 months to lodge the complaint against the same
The court concluded its order on the same by granting bail to the applicant as the trial would take some time and till that time he is allowed to be released on bail. [Bandhan Jagte v. State of Chhattisgarh, 2018 SCC OnLine Chh 390; dated 05.04.2018]
DELHI HIGH COURT
Division Bench of Delhi HC splits as to whether PM National Relief Fund is a ‘public authority’ under RTI Act
[Prime Minister’s National Relief Fund v. Aseem Takyar, 2018 SCC OnLine Del 9191, dated 23.05.2018]
The Division Bench comprising of S. Ravindra Bhat and Sunil Gaur, JJ., gave different opinions regarding the below mentioned issue.
Whether Prime Minister’s National Relief Fund (PMNRF) is a ‘public authority’ under Section 2(h)(d) of the Right to Information Act, 2005.
The Bench gave a split decision on the question of the Fund being a ‘public authority’ or not.
Initially, information was sought by the respondent regarding information related to amount, name and particulars of each recipient, beneficiary, and donor during the information period. The CPIO, Prime Minister’s Office, gave partial information and withheld the rest on the grounds that PMNRF was not a ‘public authority’ within the meaning of Section 2(h) (d) of the Act. The Chief Information Commissioner, in appeal by the respondent, decided that PMNRF was a ‘public authority’ within the Act, and hence the Fund was directed to provide information as sought by the respondent.
The appellant Fund filed the appeal before the learned Single Judge which was dismissed.
By reason of divergence in opinion, the Bench directed the matter to be placed before the Acting Chief Justice Gita Mittal to refer the following question to a third Judge:
“Whether the Prime Minister’s National Relief Fund is a “public authority” within the meaning of Section 2(h)(d) of the Right to Information Act, 2005 and accordingly, whether information pertaining to various transactions made by the Fund can be obtained by preferring an application under the said Act?”
[Prime Minister’s National Relief Fund v. Aseem Takyar, 2018 SCC OnLine Del 9191, dated 23.05.2018]
Rape accused given reduced sentence due to the occurrence of the offense before enforcement of Criminal (Amendment) Act, 2013
[Lila Duwarah v. State of Assam, 2018 SCC OnLine Gau 551, dated 18.05.2018]
A Single Judge Bench comprising of Hitesh Kumar Sarma, J., convicted the accused-appellant under Section 376(1) of the IPC, and made a correction by removing Section 8 of the POCSO Act as it was discovered by this Court that the victim was a major when the act of rape was committed upon the victim.
The brief facts of the case are that the accused/appellant had committed the offense of rape for which he was convicted by the learned Special Judge under Section 376 of the IPC combined with Section 8 of the POCSO Act. For the stated fact, an FIR was lodged and on receipt of the FIR, a case was registered under Section 376 of the IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. The learned Sessions Judge framed the charges against accused-appellant under Section 376 and 511 of the IPC as well as Section 8 of the POCSO Act.
The fact that the accused-appellant had committed the offense of rape on the victim who was intellectually disabled was allegedly proved from the fact that when he was asked to appear for a village meeting in which on being asked about the incident, he kept mum and therefore he was sent to jail.
The Hon’ble High Court on noting the fact that the victim was a major when the incident happened, acquitted the accused of the offense under Section 8 of POCSO Act, and upheld his conviction under Section 376 IPC on finding him guilty on the basis of the testimony of the victim. However, since the incident happened before the enforcement of Criminal (Amendment) Act, 2013, the accused was sentenced under Section 376(1) and his sentence was reduced from 10 years to 7 years. [Lila Duwarah v. State of Assam, 2018 SCC OnLine Gau 551, dated 18.05.2018]