Student moves High Court after college bars her with hijab

A homoeopathy student has moved the Bombay High Court after her college disallowed her to write exams due to poor attendance, which, she claimed, was because she was barred from attending classes as she wears the ‘hijab’ (headscarf).

Fakeha Badami, a resident of suburban Bandra, in her petition filed earlier this week, claimed that her attendance was poor because the Sai Homoeopathic Medical College, located at the Bhiwandi township in the neighbouring Thane district, did not allow her to attend lectures as she wears the hijab.

The petition claimed that the college prohibited all Muslim students from wearing the hijab on its premises.

As per her petition, Badami had in 2016 enrolled in the Bachelor of Homoeopathic Medicine and Surgery course in the college, which is affiliated to the Maharashtra University of Health Services (MUHS).

She had written letters to the MUHS and the Ministry of AYUSH (Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy) which asked the college to resolve the issue, saying it cannot compel a student to not wear the hijab. But, the college did not budge, said the petition.

The student had first approached the high court in November 2017 when she was not allowed to appear for the examinations held then.

The college had then told the high court that it would accommodate her in the repeater lectures and examinations that will be held in the summers of 2018, it said.

Despite this, she was allowed to attend the repeater lectures only from March this year and was again barred from appearing for the repeater exams on the ground of poor attendance, Badami claimed in the petition.

The other Muslim students had either stopped wearing the hijab to the college or left the institution. But since she continued to wear the hijab, she was being harassed, the student alleged.

“India is a secular democracy. Denying anyone the right to wear the hijab amounts to violation of fundamental right to practice religion of their choice,” the petition said.

A vacation bench of Justices S J Kathawalla and Ajey Gadkari will hear the petition on May 25.

Right to Live with Human Dignity of Advocate

E.S. Jagadeeshwar

Advocates are depriving of their Right to Live with Human Dignity

It is very popular among the people as Legal Profession is a noble profession but should not be a commercial one. No doubt an Advocate should be humane, should understand the grievances of the parties.

The present scenerio is prices of essential commodities are touching the sky, in the same manner the monthly income of an Advocate is not increasing. Particularly at the Subordinate Court level or Dist. level there is no guarantee of guaranteed monthly income to all Advocates.

For a young lawyer at the Dist. level has to concentrate mainly on Civil Laws and Criminal Laws. For this an Advocate practicing on Civil laws should aware of the filing procedure

1. Junior Civil Judge Courts

2. Senior Civil Judge Courts

3. District Judge Court

(Basic knowledge of Drafting, preparing the case, submitting to the Court of Law, knowledge of Civil Procedure Code, Indian Evidence Act, Suits Valuation Act, Stamps Act, Art of cross examination etc.)

In case of Criminal laws..an Advocate should have the knowledge of practicing

before

1. Magistrate Court

2. Asst. Seesions Judge Court

3. Sessions Judge Court

At present young Advocates are in a state of confusion. At the grassroots level it is very difficult to get a case, even after getting the case, it is difficult to collect the fee.

The Advocate Fee Rules are outdated. The fee fixed by the authorities concerned is very low. Basing on that income an Advocate cannot survive.

Whereas in case of High Court and Supreme Court eminent Advocates are collecting huge amounts on hourly basis, for appearance, consultation fee, drafting fee etc. In some cases the fee may be in lakhs. A Trial Court Advocate cannot demand in such a manner.

Once an Advocate has been appointed as a Standing Counsel to any Bank or Insurance Company, there is no limit of cases allotted to him/her. Once he/she has been appointed as a Counsel, he/she is continuing until he retires or dies. How young Advocates will get opportunities?

In Andhra Pradesh, drafting of various legal documents is being done by Document Writers but not by trained Lawyers.

Corporates are less at Dist. level and all registered offices are situated in Capital cities or well developed cities. The payments made by the corporates to their Standing Counsels is also less.

Under these circumstances how an Advocate can survive?

1. Advocate Fee Rules are outdated not in tune with modern times.

2. Corporates are paying very low fee by taking advantage of outdated Advocate Fee Rules.

3. Opprotunities to be appointed as Standing Counsel for Banks, Insurance Companies or Corporates are very less.

4. Few Advocates are controlling the legal profession.

5. There is no guarantee of guaranteed monthly income to all Advocates at the Subordinate Court.

6. Without having sufficient cases how an Advocate can sharpen his/her skills? What are the opportunities available to them at the Dist. level? How many Tribunals under various Acts are available at Dist. level?

7. What are the opportunities available to specialize a single Act or Law at the Subordinate Court?

8. Without having sufficient cases how an Advocate can improve the skills of cross examination?

9. Why the State and Central Governments are reluctant to establish more High Court benches and Supreme Court bences in various States?

I would like to say to our legal fraternity as ”specifically Subordinate Court Advocates are deprive of their Right to Live with Human Dignity. They are unable to understand their purview as well as the public also.

Be bold and raise your voice to uplift the human dignity of our legal fraternity and make efforts to provide guaranteed monthly income to all Advocates. Otherwise their lives will be in danger. They cannot survive, they have to leave the profession.

Our Advocate brethren are thinking about the protection of human rights of others but not our legal fraternity. What I feel is, first we have to protect our ”right to live with human dignity” then only, we can understand others.

So, our legal fraternity can understand my heartburn as well as our Trial Court Advocates

 

 

High court to decide on Kasab death sentence Feb 21

The Bombay High Court Monday set Feb 21 as the date when it will pronounce its verdict on the death sentence awarded to Pakistani terrorist Mohammed Ajmal Kasab for his role in the 2008 Mumbai terror attack.

The court announced that it will give its verdict Feb 21 confirming or commuting the death penalty of Kasab awarded by a lower court last year, said Special Public Prosecutor Ujjwal Nikam.

The high court will also the same day decide on Kasab’s appeal against the award of death sentence to him by the lower court, his lawyer Farhana Shah said.

The matter came up before the Bombay High Court Monday for further directions in the case, the hearings on which were concluded three weeks ago.

In the final stages of the hearing in the high court, Kasab boycotted the proceedings after the judges rejected his request to be brought physically to the court.

In view of the security considerations in transferring him to and from the court, Kasab was made to appear before the court through a video-conference link set up in the high-security Arthur Road Central Jail.

At one of the initial hearings, Kasab displayed violent tendencies and attempted to spit at the video-camera. Refusing to accept the death sentence, Kasab also demanded that he should be sent to the US.

On Nov 26, 2008, Kasab and nine other Pakistani terrorists sneaked into south Mumbai through the Arabian Sea route and targeted various locations, including the Chhatrapati Shivaji railway terminus, Taj Mahal Palace & Tower Hotel, Hotel Trident-Oberoi, and Nariman House which housed the Jewish Chabad House.

The 60-hour mayhem left 166 people dead, including many foreign nationals, and over 300 injured

INHERENT POWERS OF THE HIGH COURT UNDER SECTION 482 OF CrPC

From:

DIVYA VIKRAM

According to Sec 26 of CrPC, 1973, Offences under the Criminal Procedure Code (hereinafter the “CrPC”) are divided into:

1. Offences under Indian Penal Code (IPC) ( triable by HC, Sessions Court and other court shown in the 1st Schedule to the CrPC)

2. Offences under any other law (empowers HC, when no court is mentioned for any offence under any law other than IPC, to try such offences)

S482 deals with Inherent powers of the Court. It is under the 37th Chapter of the Code titled “Miscellaneous”.

Sec 482 CrPC reads as follows:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

The section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

1. to give effect to an order under CrPC,

2. to prevent abuse of the process of the court,

3. to secure the ends of justice.

It comes into operation when the court acts judicially and passes an order. If order is passed by Executive officer of State in administrative capacity, it has no application. Therefore persons aggrieved by such order cannot come to HC to exercise its inherent power under this section. As the Inherent powers are vested in HC by “law” within meaning of Art 21 of Constitution, therefore, any order of HC in violation of any right under Art 21 is not ultravires. Eg. Cancelling of bail bond by HC thereby depriving a persons personal liberty.

Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases., The section is a sort of reminder to the high courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the high court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

Under CrPC , inherent powers are vested only in the high courts and the courts subordinate to the high courts have no inherent powers. In Bindeshwari Prasad Singh v Kali Singh , the Supreme Court held that a magistrate has no inherent power to restore a complaint dismissed in default.

In a proceeding under section 482, the high court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provision provided under the Code.- Kavita v. State (2000 Cr LJ 315) and B.S. Joshi v. State of Haryana (AIR 2003 SC 1386). If an effective alternative remedy is available, the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

“To prevent abuse of process of any court”

Ordinarily HC will not interfere at an interlocutory stage of criminal proceeding in subordinate court but, HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there is any exceptional or extraordinary reasons for doing so. Shyam Sachdev v. State. Contra view in Shiv Prasad v. State of Rajasthan.

Test to determine whether thre has been an abuse of any court are:-

1. See whether a bare statement of facts of case would be sufficient to convince HC if it is a fit case for interference at intermediate stage.

2. Whether in the admitted circumstances it would be a mock trial if case is allowed to proceed.

Reasons HC can interfere:

1. Long lapse of time

2. Failure or impossibility to supply to accused, copies of police statements and other relevant documents- grounds for other relevant documents- grounds for HC to quash proceedings against accused.

“To secure ends of justice”

Eg. When a clear statutory provision of law is violated- HC can interfere. It is of vital importance in the administration of justice, and ensure proper freedom and independence of Judges must be maintained and allowed to perform their functions freely and fearlessly without undue influence on anyone, even SC. At the same time Judges and Magistrate should act with a certain amount of justice and fair play.

The SC in Madhu Limaye v. Maharashtra AIR 1978 SC 47 and also in Amarnath v. Haryana(1977) and Jadhav v. Shankarrao Pawar(1983) has held the following principles would govern the exrcise of inherent jurisdiction of the HC:

1. Power is not to be resorted to if there is specific provision in code for redress of grievances of aggrieved party

2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice

3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.

It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court as for example State of Haryana Vs. Bhajan Lal (1992 Supp (1) SCC 335), Janata Dal Vs. H.S. Chowdhary and Others (1992 (4) SCC 305), Rupan Deol Bajaj (Mrs.) and Another Vs. Kanwar Pal Singh Gill and Another (1995 (6) SCC 194), Indian Oil Corp. Vs. NEPC India Ltd. and Others (2006 (6) SCC 736).

In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335) a two-judge bench of the Supreme Court of India considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by high courts in exercise of their inherent powers to quash a criminal complaint:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations

in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In Indian Oil Corporation v. NEPC India Ltd. and Others (2006) 6 SCC 736 ) a petition under section 482 was filed to quash two criminal complaints. The High Court by common judgments allowed the petition and quashed the two complaints. The order was challenged in appeal to Supreme Court of India.

While deciding the appeal, the Supreme Court of India laid down following principles:

1. The high courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution.

2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of

even the basic facts which are absolutely necessary for making out the alleged offence.

3. It was held that a given set of facts may make out (a) purely a civil wrong, or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence.

As the nature and scope of civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

In interest of maintaining independence of judiciary, Judges and Magistrate should be at full liberty to discuss the conduct of persons before them. However, While exercising inherent powers, the Court should observe and not violate the following three principles while expressing opinions on conduct of parties and witnesses:

1.) No person should be condemned without being heard

2.) The criticism of judges and magistrate should not travel beyond the record

3.) The criticism should be made without sobriety and due sense of responsibility.- Saulal Yadav case [1963 Raj 886]

Recent case laws

Kishan Lal v. Dharmendra Bafna [2009 (9) 768]

Here the Parties related to each other being members of the same family. Dispute was relating to a farm house. Both parties lodged FIR. In case filed against appellant his mother and sister, he was convicted. Final reports were prepared twice for the case filed by appellant against his mother and sister. Deputy Superintendent of police on the second report sought to obtain legal opinion of public prosecutor who was asked to complete the investigation and submit an appropriate report to the court. A petition was filed under Sec 482 of CrPC against order of further investigation, which was dismissed by the HC. The issue was whether

i) HC was justified in observing that valid grounds existed for granting bail to petitioners and

ii) HC was right in issuing directions for grant

iii) of exemptions from personal appearance

The SC held both in negative and remitted the matter to the HC.

State of Punjab v. Pritam Chand & Ors. [2009 (2) 457]

Powers possessed by the HC under 482 CrPC are very wide requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. Inherent power should not be exercised to stifle a legitimate prosecution. In the instant case Complainant was married to Appellant 1. Appellant left for U.S.A in 1999. A case under Sec 498 I.P.C and S 4 of Dowry Prohibition Act was filed. Complaint was treated as FIR and investigation was undertaken. On completion of investigation charge sheet was filed. A divorce petition was filed by Appellant in 2001, which was granted ex parte. According to appellants, complainant remarried subsequently. Appellant filed petition under sec 482 before the HC for quashing of complaint. HC dismissed the petition, and this was subsequently challenged in SC. It was held that HC was not justified in dismissing the petition filed by the appellants.

State of Kerala v. Jabbar [2009 (6) 659]

The respondents lodged FIR, against appellant alleging commission of offences under sec 406 and 420, I.P.C and same was registered. Thereafter investigation commenced. Even while investigation was in progress respondent moved the HC under Sec 482 CrPC, seeking directions to the police to seize an amount of Rs 2,28,00,000/- from appellants claiming that he was entitled for Rs 1,28,00,000/- for facilitating registration of land under the MOU, which amount is alleged to have been withheld by appellants along with a sum of 1 crore, stated to have been paid by him to the appellant. In the said petition there was no allegation of any collusion and deliberate delay on part of investigation agency. HC within a period of one month from the date of filing of petition, finally disposed the same observing that it is obligatory on part of respondent police to conduct investigation in accordance with law, including recording of statements from witness, arrest, seizure of property, filing of charge sheet etc. HC further directed that if account is available with accused person or any amount is in their possession, it is obligatory on part of respondent police to take all necessary steps to safeguard the interest of the respondent. HC accordingly directed the police to expedite and complete investigation within 6 months. The issues were

i) Whether it is open to HC in exercise of its jurisdiction under Sec 482, to interfere with statutory power of investigation by police into cognizable offence.

ii) Whether such direction could have been issued by the HC in exercise of its jurisdiction under Sec 482.

Court held both in the negative. Inherent power of the court is saved to interfere with the proceedings pending before a Criminal Court if such interference is required to secure the ends of justice or where the continuance of proceedings before a court amounts to abuse of the process of Court. Such a power is always available to HC in relation to matter pending before a criminal court.

CONCLUSION :

Section 482 CrPC has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts. This section would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfill there personal grudges.

High Court reduces Sanjeev Nanda’s jail term

NEW DELHI: In a major relief to Sanjeev Nanda, prime accused in the BMW case of 1999, the Delhi High Court converted his offence from culpable homicide not amounting to murder to a simple case of causing death by rash or negligent act and reduced his sentence from five years to two years.

Sanjeev Nanda is the son of arms dealer Suresh Nanda and grandson of former Navy Chief Admiral S. M. Nanda. The Court gave the relief in a judgment on an appeal by Nanda against his conviction by the trial court.
The Delhi police had charged-sheeted him under Section 304 Part-II (culpable homicide not amounting to murder) of the Indian Penal Code, and the trial court had upheld it last year, sentencing him to five years’ rigorous imprisonment. With the reduction of his sentence he is likely to come out of Delhi’s Tihar Central Jail in about two months from now as he has already undergone more than 20 months of the sentence. The police had charged him with running his BMW car over six persons, including three policemen, on Lodhi Road here in the early morning of January 10, 1999.
The investigating agency had charge-sheeted him for culpable homicide not amounting to murder alleging that he was drunk and driving well beyond the stipulated speed limit. The trial court had upheld the charge. The High Court rejected the trial court’s reasoning for accepting the police case and reduced his offence as well as the period of sentence.
“Now taking into consideration the totality of the circumstances — evidence of the two hostile witnesses, court witness and the circumstantial evidence — I do not find myself in agreement with the finding of the learned trial court that the offence committed by the appellant attracts Section 304 part II and not Section 304-A of the Code”, the Court said in the 274-page verdict.
“No doubt….the appellant caused the accident in which six persons died and one was injured but it was not a case where the appellant had any knowledge of the presence of those persons on the road and therefore no parallel can be drawn between the circumstances of this case and the observations of the Supreme Court that if a person wilfully drives into a crowd then the case cannot be taken to be one under Section 304-A of the Code”, the Court said.