SCHOOL ACROSS THE COUNTRY DIRECTED TO PROVIDE BASIC INFRASTRUCTURE AND FACILITIES TO STUDENTS

A petition was filed by a registered charitable society, seeking various directions to improve the conditions of Government and aided school and also school run by the local authorities so that the constitutional objective of providing free and compulsory education under the Constitution of India would be a reality.

The Supreme Court in Environment & Consumer Protection Foundation Vs Delhi Administration & Others27 directed the schools across the country to provide basic infrastructure facilities like toilet facilities for boys and girls, drinking water facilities, sufficient class rooms, appointment of teaching and non-teaching staff, etc., if not already provided, within six months from the judgement (decided on 03.10.2012). It was held that the directions are applicable to all the schools, whether State owned or privately owned, aided or unaided, minority or non-minority.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

DEATH DUE TO NEGLIGENT ACT OF A DOCTOR IS AN ACCIDENT – LIC TO PAY ACCIDENTAL DEATH BENEFITS

Does the negligent or rash act of a doctor which causes the death of his patient immediately, comes within the parameters of an accident?

The National Consumer Disputes Redressal Commission (NCDRC)  in Life Insurance Corporation of India Vs Narender Singh26 observed:

Death of a patient due to rash and negligent act of a doctor is an accident, making the victim entitled to the accidental death benefits from his or her insurer. The LIC was ordered to pay the accidental death benefits to the husband of the insured, who had died while being operated upon. The NCDRC held “..the injury to the life assured was an accident caused by outward, violent and visible means and therefore, the Life Insurance Corporation of India cannot be absolved from its liability to pay the accidental benefits to the complainant”.

The LIC had denied the accidental benefits to the complainant saying his wife death during the surgery was not an accident.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

COMMUNITY SERVICE AS PUNISHMENT IN ADDITION TO PRISON SENTENCE FOR DRUNKEN DRIVING

In a matter of BMW car hit case, where on the intervening night of 9/10.01.1999, an unfortunate motor accident took place involving BMW car. The BWM car driven by the accused in a drunken state, had caused the death of six human beings and one injured. Bodies were lying on the road unattended.

The Supreme Court in State Tr.P.S. Lodhi Colony New Delhi Vs Sanjeev Nanda25 , observed:

The convict should serve the community, especially in crimes relating to motor vehicles. Serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. The conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost.

In the above case, the Supreme Court in addition to a prison sentence and fine held “the accused would do community service for two years which will be arranged by the Ministry of Social Justice and Empowerment within two months. On default, he will have to undergo simple imprisonment for two years”.

The question that arose for consideration was whether the respondent deserves to be held guilty of commission of offence under section 304 part II of the Indian Penal Code (IPC) or the conviction and sentences awarded to him by the High Court of Delhi, under section 304 A of the IPC should be held to be good and legally tenable. The Highest court held that the High Court committed an error in converting the conviction to section 304A of the IPC from that of 304 (II) IPC.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WIFE RIGHT TO RESIDE WITH HER HUSBAND UNDER THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT

The Delhi High Court in Kavita Dass Vs NCT of Delhi & Another(24), held that a woman can never be charged with trespass if she insists on staying with her husband in a house taken on rent.

In the above case the wife had sought to quash FIR registered for criminal trespass. The Delhi High Court observed:

The legally wedded wife has a right to live with the husband, whether he lives in an ancestral house or own acquired house or rented house. If the husband does not allow the aggrieved wife, then by taking shelter of the Court under the provisions of the Protection of Women from Domestic Violence Act, the Magistrate may pass the order so that she may enter to the house or she would not be thrown out of the house of his husband without due process of law.  The wife cannot be directed to vacate the house without due process of law.

The High Court in the above matter, quashed the FIR registered under section 448 of the Indian Penal Code, 1860 and all the emanating proceedings therefrom. 

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

STAY ORDERS AND ITS EXERCISE BY THE HIGH COURT, SUGGESTION MADE BY THE SUPREME COURT

Grant of stay orders in civil and criminal cases is part of  judicial proceedings and courts have been vested with inherent powers in this regard under the relevant provisions of the Code of Civil Procedure, 1908 and Criminal Procedure Code, 1973.

In a recent judgement in Imtiyaz Ahmad V State of Uttar Pradesh & Others23, the Supreme Court had the occasion to look into the issue of grant of stay orders by the High Courts during investigation or trial in criminal matters. The Supreme Court held:

“The authority of the High Court to order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice. It is therefore clear that:

(i) Such an extraordinary power to be exercised with due caution and circumspection.

(ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial.

(iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

WHETHER A STUDENT IS A CONSUMER?

The National Consumer Disputes Redressal Commission had held that an education board is not a service provider and a student writing an exam is not a consumer.

The National Consumer Disputes Redressal Commission in University of Delhi Vs Mohd. A.M Abel Karim22 held:

“The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbided sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis- -vis other examinees. The process is not therefore availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination. The Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer – scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service – provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. The Board is not a ‘service provider’ and a student who takes an examination is not a ‘consumer’ and consequently, complaint under the Act will not be maintainable against the Board”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates 

DEATH RESULT OF CRUELTY OR DEMAND OF DOWRY, DENIAL CANNOT BE TREATED AS DISCHARGE OF ONUS

In a case of dowry death,  accused were charged with offences under sections 498-A and 304-B of the Penal Code, 1860, the Supreme Court in Pathan Hussair Basha Vs State of A.P21 observed that the present case completely satisfied the ingredients of section 304-B and 498-A IPC. The Court further observed that it is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It is expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. Herein, prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgements of the courts under appeal.

The Supreme Court in Pathan Hussair Basha Vs State of A.P21, held:

“… the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of section 304-B. Where other ingredients of section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of section 304-B the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under section 304-B of the Code.

Applying these principles to the facts of the present case, it is clear that the ingredients of section 304B read with section 498A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

PERSON CONVICTED UNDER S.138 N.I ACT (CHEQUE BOUNCE) CAN BE PROSECUTED UNDER S.420 IPC

A person tried earlier for the offences punishable under the provisions of section 138 of the Negotiable Instrument Act (for cheque bounce)  is not a bar for punishing under section 420 Indian Penal Code (IPC). Doctrine of Double Jeopardy not attracted. As observed in the Hon’ble Supreme Court decision in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20.

The Hon’ble Supreme Court in Sangeetaben Mahendrabhai Patel Vs State of Gujarat & Another20 held:

“Admittedly, the appellant had been tried earlier for the offences punishable under the provisions of section 138 N.I Act and the case is sub judice before the High Court. In the instant case, he is involved under sections 406/420 read with section 114 IPC. In the prosecution under section 138 N.I Act, the mens rea i.e fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved. However, in the case under IPC involved herein, the issue of mens rea may be relevant. The offence punishable under section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case under N.I Act, there is a legal presumption that the cheque had been issued for discharging the antecedent liability and that presumption can be rebutted only by the person who draws the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There cannot be such a requirement in the offences under IPC. The case under N.I Act can  only be initiated by filing a complaint. However, in a case under the IPC such a condition is not necessary.

There may be some overlapping in both the cases but ingredients of offences are entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory provisions.”

Prepared by: S. Hemanth

Advocate at Hemanth & Associates

CAN CRYPTIC MESSAGES CONSIDERED FOR FIR?

Can cryptic messages be considered as a First Information Report (FIR). FIR a written document prepared by the police when they receive information about the commission of a cognizable offence. HELD cryptic messages not FIR.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 observed cryptic messages cannot be FIR.

Supreme Court in Binay Kumar Singh and others Vs State of Bihar [(1997) 1 SCC 283] held that the officer in-charge of the police station is not obliged to accept as FIR any nebulous information received from somebody which does not disclose any authentic cognizable offence and it is open to the officer in-charge to collect more information containing details of the occurrence, if available, so that he can consider whether a cognizable offence has been committed warranting investigation.

The Supreme Court in Sheikh Ishaque and Others Vs State of Bihar [(1995) 3 SCC 392], Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brick batting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of section 154 Cr.P.C.

The Hon’ble Supreme Court in Anand Mohan Vs State of Bihar19 held “In our consideration opinion, therefore, the trial court and the High Court have rightly treated the subsequent typed written information lodged by PW-14 and not the wireless message as the FIR”.

Prepared by: S. Hemanth

Advocate at Hemanth & Associates