SC refuses urgent hearing on plea to put off Union Budget
The Supreme Court today refused an urgent hearing on a plea seeking postponement of presentation of Union Budget due to assembly elections in five states.
“There is no urgency in it. We will lay down the law when this petition comes up,” a bench headed by Chief Justice J S Khehar said.
Advocate M L Sharma, who filed the PIL on the issue, mentioned it and sought an urgent hearing.
The PIL has also sought a direction to strip BJP of its lotus election symbol for alleged violation of the model code of conduct which came into effect after declaration of assembly polls in five states.
Can sex with wife below 18 yrs attracts POCSO:asks SC
Can sex with wife, who is above 15 and below 18 years of age, be termed as sexual assault under the Protection of Children from Sexual Offences (POCSO) Act in the event of glaring inconsistency with IPC which does not hold it as rape, the Supreme Court today posed this question to the Centre.
Section 375 (rape) of IPC has an exception clause which says “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Section 5 (n) of POCSO says that sexual intercourse with a child below 18 years is an “aggravated penetrative sexual assault” inviting penal consequences.
A bench headed by Chief Justice J S Khehar considered the inconsistency highlighted by Nobel Laureate Kailash Satyarthi through his NGO Bachpan Bachao Andolan and asked the Centre to consider their representation and file its response in four months.
The bench also comprising Justices N V Ramana and D Y Chandrachud asked the Ministry of Women and Child Development to consider the representation of the NGO, examine it and file the detailed report on the issue.
“If you are still unhappy with the response, you are at liberty to approach the court,” the bench said.
Section 6 of POCSO Act provides punishment of rigorous imprisonment not less than 10 years to life imprisonment for aggravated penetrative sexual assault on a child below 18 years of age.
The PIL filed by advocates Bhuwan Ribhu and Jagjit Singh Chabra said that court should pass order declaring that the provisions of POCSO shall be mandatorily enforced and applied in all cases of sexual assault upon children, below the age of 18, regardless of their marital status.
The petition has said that “in a large number of cases that despite being a child by definition (under the age of 18), provisions of POCSO are not being applied and the benefit of a special act is not being afforded to those children, who by definition fall under POCSO, but who are in a married relationship”.
Pancholi files appeal against conviction in attack case
Two months after a magistrate court sentenced him to one-year imprisonment for assaulting his neighbour, Bollywood actor Aditya Pancholi has moved a sessions court appealing against his conviction.
In his appeal filed by lawyer Ninad Mazumdar recently, Pancholi challenged his conviction saying it is contrary to material on record and against the principles of natural justice.
“The learned magistrate failed to appreciate the embellishments in the evidence, which has come on record in the form of cross examinations,” the appeal said.
It also said that the magistrate, rather than appreciating the discrepancies in the right perspective and giving the benefit of the same to the accused (Pancholi), appreciated the same against the accused by himself giving explanation of any such discrepancies.
“The magistrate did not appreciate the fact that there is absolutely no intention brought on record for the (actor) to assault the informant and erred in ignoring the fact that there was absolutely no reason for the actor to assault the informant,” the appeal said.
The actor has sought quashing of the judgement and his acquittal in the case.
According to police, Pancholi hit his neighbour Pratik Pasrani and reportedly fractured his nose at their residence in 2005.
Police had said that Pancholi’s guest had parked his vehicle at the space earmarked for Pasrani at Magnum Opus Apartments in suburban Versova, Pasrani objected to it and asked the security staff to clear the vehicle, following which an altercation broke between the duo and the actor assaulted Pasrani.
The police initially took a non-cognisable case, but the medical examination revealed that Pasrani’s nose was fractured and the police registered a case of grievous hurt and criminal intimidation.
The West Bengal government today claimed that no CBI probe was required into the Narada tapes as Mathew Samuel, who conducted the alleged sting operation, could not establish any demand for bribe from any Trinamool Congress leader purportedly appearing in the videos.
Advocate General Jayanta Mitra argued before a division bench comprising acting Chief Justice Nishita Mhatre and Justice T Chakraborty that there had to be a demand for bribe and then acceptance of the same as stated in the Prevention of Corruption Act.
Mitra submitted that if the ingredients of Prevention of Corruption Act are not satisfied, then one cannot conclude that an offence is committed.
The acting Chief Justice asked the AG that if it was found in the tapes that some money had been given, could the court shut its eyes?
The AG, who told the court that he was appearing for the state on the ground of maintainability of the three PILs demanding a CBI probe into the Narada tapes, submitted that before an inquiry can be directed to be instituted, the court has to satisfy itself as to whether any cognisable offence has been committed.
The sting tapes, which were released by Narada Media Pvt Ltd before the West Bengal Assembly elections last year, purportedly show 11 TMC leaders, including ministers and MPs, accepting money.
The matter was adjourned for the day and would be heard again tomorrow.
‘Common Cause’, an NGO, today filed a fresh affidavit in the Supreme Court seeking a court- monitored SIT investigation into the raids on two business houses in 2013-14 after which bribery allegations have been made against against politicians including Prime Minister Narendra Modi.
‘Common Cause’, which has repeatedly been asked by the court to come up with credible material in support of its bribery allegations, today filed several documents, including some e-mails, as annexures to its affidavit.
It claimed that the fresh material pertained to CBI raid on Aditya-Birla Group office and the Income Tax raid on the premises of Sahara group and subsequent investigations.
A bench headed by by Justice Khehar had last month questioned the NGO and its lawyer Prashant Bhushan whether aspersions could be cast against the prime minister without placing “sufficient”, “firm” and “clear” materials.
It had also said that the PIL was based on “zero material” and was only making “insinuations” and asked Bhushan to come out with credible material for the court to consider.
The NGO’s additional affidavit today said, “The following facts make out a clear case: 1) Raids were conducted by the CBI on the Birla Group and by the Income Tax Department on the Sahara Group, 2) Huge unaccounted amounts of cash was recovered in the raids, 3) Diaries, notebook, hand written papers, computer documents were recovered in the raid, 4) The information gathered shows bribery of politicians and civil servants.”
The court, on December 16, had also ticked off Bhushan, calling as “unreasonable” and the “most unfair” the plea seeking recusal of Justice J S Khehar from hearing the matter on the ground that his file for elevation as the CJI was then pending with the government. It has now posted the matter for hearing on January 11.
The NGO, in its fresh affidavit, has referred to a Constitution Bench judgement in the Lalita Kumari case and said “it is a settled law that the registration of an FIR is mandatory when the information discloses a cognizable offences” and the circumstances in the matter make out a “more than adequate case for directing a credible and independent investigation”.
Referring to the apex court’s direction in the Jain Hawala case, it said that the present case stands on a “much better footing” because there has been seizure of huge money in raids.
The court had on December 14 made it clear that it is not going to entertain the plea of the NGO unless it comes out with firm and relevant material.
Banning tainted leaders from polls: SC to set up larger bench
Ahead of crucial upcoming Assembly polls in five states, the Supreme Court today said it would “soon constitute” a five-judge bench to decide questions like whether people facing trial in serious crime cases can be allowed to contest and at which stage of trial, a lawmaker would stand disqualified.
“We must clarify this matter so that people know the law by next election,” a bench headed by Chief Justice J S Khehar said while considering the submission that these issues needed to be decided at the earliest as many “dreaded criminals”, against whom charges have been framed by courts in serious cases, are planning to contest upcoming Assembly polls.
“We will soon constitute a Constitution bench to decide these issues,” the bench, also comprising Justices N V Ramana and D Y Chandrachud, said.
Senior advocate Vikas Singh, appearing for lawyer and Delhi BJP spokesperson Ashwini Kumar Upadhyay, mentioned the PIL on the issue for urgent hearing on grounds including that many people, facing trial in serious cases, may contest and win elections and hence the legal questions needed to be settled.
During the brief meintioning, the bench also said, “We cannot give an immediate answer to these questions since there is fear of lodging false cases in elections.”
A three-judge bench had on March 8 last year, referred various PILs including the one filed by Upadhyay to the CJI saying the questions like can a lawmaker, facing criminal trial, be disqualified at conviction stage or at the framing of charge in a case have to be decided by a larger bench.
At present, a person, convicted in a serious criminal case, is barred from contesting polls and a lawmaker stands disqualified in the event of conviction.
The questions, raised in the petitions, also include whether a person against whom charges are framed be permitted to contest elections.
Singh told the bench that the ban on contesting polls is not sought against those who are facing charges in petty offences.
Besides Upadhyay, former Chief Election Commissioner J M Lyngdoh and NGO ‘Public Interest Foundation’ had filed PILs raising similar issues. The pleas were referred to the larger bench which is yet to be set up.
Data collection by pvt agencies for Aadhaar not a good idea: SC
The Supreme Court today refused to expedite the hearing of Aadhaar cases challenging the constitutional validity of the scheme but observed that data collection by private agencies is not a good idea.
A bench headed by Chief Justice J S Khehar made the remarks after senior advocate Shyam Divan sought urgent hearing of the plea citing privacy concern.
“We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea,” the bench also comprising Justices N V Ramana and D Y Chandrachud said.
Divan, who represented one of the petitioners, said that these matters needs urgent hearing as there is individual’s privacy concern as biometric datas are being collected by private agencies.
The apex court had on October 15, 2015 lifted its earlier restrictions and permitted voluntary use of Aadhaar cards in welfare schemes that also included MGNREGA, all pension schemes and provident fund, besides ambitious flagship programmes like ‘Pradhan Mantri Jan Dhan Yojna’ of the NDA government.
The social welfare schemes, aimed at reaching the door steps of the “poorest of the poor”, were in addition to LPG and PDS schemes in which the apex court had allowed the voluntary use of Aadhaar cards.
A five-judge constitution bench had put a caveat in its interim order for the Centre and said that Aadhaar card scheme is purely voluntary and not mandatory till the matter is finally decided by this court, this way or the other way.
It had said that that a larger bench was required to be set up for final disposal of the petitions that also include the question as to whether the right to privacy is fundamental right.
A three-judge bench had on August 11, 2015 referred a batch of petitions, challenging the Aadhaar card scheme, to a larger bench for an authoritative view on the question as to whether the right to privacy is fundamental right or not and had also restricted the use of Aadhaar to PDS and LPG scheme only.
UIDAI, established by UPA-2 in 2009, issues Aadhaar cards to the citizens.
Under the programme, every citizen is to be provided a 12-digit unique identification number for which biometric information is collected.
Can’t deny justice in over zealousness to dispose cases: Delhi HC
Courts must never deny justice to anyone in “over zealousness” to dispose cases, the Delhi High Court has said while observing that “docket explosion” of matters is a problem for the judicial system to contend with.
A bench of Justices Badar Durrez Ahmed and Ashutosh Kumar said this while setting aside a judgement passed by a single judge who had dismissed a suit filed by a petitioner seeking permanent injunction restraining infringement of trade mark allegedly by the respondent firm.
The division bench noted that the single judge, in its verdict in August last year, had dismissed the suit at the admission stage itself without issuance of summons and “this, we are afraid, is contrary to the provisions of the statute”.
“Before concluding, we would like to make a brief comment on the court’s concern with ‘docket explosion’. No doubt, it is a problem for the judicial system to contend with. But, that does not concern the individual litigant who comes to court seeking justice,” the bench said.
“Our endeavour must never be to deny justice to anyone in our over zealousness to dispose cases. As Benjamin Franklin said – great haste makes great waste, courts while endeavouring to deliver speedy justice, must not hand out hasty decisions without any concern for justice,” it said.
The court observed that the single judge has made certain observations based on his “own research” without giving any opportunity of rebuttal to the petitioner.
“For all these reasons, the impugned judgment cannot be sustained at all. The same is set aside. The suit is restored and the same shall be proceeded with by the single judge in accordance with the law,” the bench said while allowing the appeal filed by the petitioner.
The petitioner, engaged in hotel business, had approached the high court claiming that the respondent firm was using the trade mark ‘PRIVEE’ which was identical to or deceptively similar to their trademark MBD PRIVE and PRIVE.
The suit by the petitioner had come up for hearing before a single judge in July last year and the court had dismissed the plea without issuing any summons to the respondent.
The single judge had observed that suits which are doomed to fail and of which there are no chances of success should be dismissed at whatever stage the court finds it to be so.
The division bench, while setting aside the verdict, noted that “a court may feel that case of a plaintiff is weak but that is no ground whatsoever for throwing out the suit lock, stock and barrel without giving the plaintiff an opportunity of proving and establishing its case”.
The National Green Tribunal today took the Ministry of Environment and Forests (MoEF) to task over its recent notification exempting real estate projects from obtaining prior environmental clearance (EC) and restrained it from granting any fresh permissions under the new regulation.
“You can’t do legal blunders and get away with it,” a bench headed by NGT Chairperson Justice Swatanter Kumar said as it pulled up the MoEF for not “applying its mind” while amending the notification published on December 9, 2016 exempting building and construction projects of all sizes from the process of environment impact assessment (EIA) and prior environmental clearance before beginning construction.
For smaller projects (less than 20,000 sq metres), it even has a “self-declaration” clause, which will ensure issuance of permission from urban local bodies.
For larger projects of more than 20,000 sq m size, the EC and building permission will be given by urban local bodies simultaneously in an “integrated format”.
“Why don’t you (MoEF) do something constructive for the system. There is a way of doing things.
“We don’t understand why do you do these funny things….
“If you wanted to amend the notification, you could have simply said that though the new projects are not required to take EC, but each project when cleared by local authorities would have certain conditions imposed on it.
“You tell your ministry and all others not to act under the new notification, otherwise we will stay the notification.
“You can’t do legal blunders and get away with it,” the bench said while granting liberty to the petitioners to approach NGT if a single permission is granted under the new notification.
The matter is now listed for next hearing on January 12.
The green panel had earlier refused to stay the December 9 notification by MoEF and issued notices to the ministries of Environment and Forests and Urban Development while seeking their reply before January 4, 2017.
The tribunal was hearing a plea filed by Society for Protection of Environment and Biodiversity seeking quashing of the December 9 notification on the grounds that it was in contravention to the provisions of EIA notification, 2006 and Environment Protection Act, 1986.
The plea had alleged that the notification tries to “circumvent” the provisions of the EIA Notification, 2006 in the name of “ease of doing business” for building and construction of areas which are more than 20,000 sqm and less than 150,000 sqm wherein prior EC was required earlier.
The petition said the purpose of including the building and construction projects in the EIA notification is a failure of the urban local bodies and development authorities.
Man who lost eye in fight gets justice after 17 years
A man who lost an eye after getting beaten up by two brothers has found justice, albeit after 17 years, as a local court here sentenced the accused to 10 years in prison.
Additional District Sessions Court judge D C Singh held the brothers Avnish and Perveen guilty under Section 326 of the IPC (Voluntarily causing grievous hurt).
Besides sentencing them to 10 years imprisonment, he imposed a fine of Rs 5,000 each.
The victim, Vijaypal, had lost an eye after he was beaten up by the duo when he accused them of stealing electricity at Fatehpur village in Shamli district on June 16, 1999, government lawyer Jitender Tyagi said.
