Preventive detention laws — Not an alternative to normal legal process

High Court of Jammu and Kashmir: A Single Judge Bench of Tashi Rabstan, J., quashed an order dated 27.01.2018, passed by the District Magistrate, Reasi, by virtue of which the petitioner was placed under preventive detention. The petitioner was alleged to be involved in three criminal cases viz. FIR nos. 143/2015, 230/2017 and 08/2018, and was detained by the respondent authorities in furtherance of order dated 27.01.2018, which was confirmed by the government vide order no. Home/PB-V/206 of 2018. The Court highlighted the importance of Right to Life and Personal Liberty as enshrined under Article 21 of the Constitution, and cited various judgments of the Supreme Court, observing that preventive detention is often described as ‘jurisdiction of suspicion’ and in cases where no offence is proved, the only ground for detention is suspicion of the authorities. The Court placed reliance on Rekha v. State of Tamil Nadu, AIR 2011 SCW 2262, wherein the Supreme Court had held that, in a case of preventive detention, the laws should be strictly construed since the detenu is not entitled to hire a lawyer to present his case before the detaining authorities, and since the order for preventive detention is merely passed on the basis of suspicion, it is not backed by any kind of evidence or proof of guilt.…
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Every violation of visa norm cannot lead to banning a person from entering into the country: Delhi HC

Delhi High Court: The Single Judge Bench comprising of Rajiv Shakdher J., decided on a petition seeking the removal of the ban on entry of the petitioner an Indian origin Canadian citizen in India due to being put on a ‘Blacklist’ along with violating the principles of natural justice. The matter majorly dealt with the ban of the petitioner on entering in India who is of Indian origin migrated to Canada and consisted of an Overseas Citizen of India (OCI) card which permits the free travel to and from India qua persons who are foreign citizens of Indian origin. The petitioner was asked to return to Canada when he reached Hyderabad airport to see his differently able child who had fallen seriously ill. The petitioner in seeking legal recourses and on being dissatisfied with responses moved to the High Court, where a counter affidavit was filed by the respondents saying the High Court had no jurisdiction to entertain the said petition. Though, the High Court dealt with the issue of jurisdiction and stated that the submission can’t be sustained. While considering the facts and circumstances of the case, the High Court came to the conclusion with following reasoning that, as averred by the petitioner that he attended ‘Tabligh’ work, it is not a banned activity in accordance to the visa manual.…
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Matrimonial discord not a ground for termination of a 23-week old pregnancy

High Court of Judicature at Bombay: A 2-judge Bench comprising of Shantanu Kemkar and Nitin W. Sambre, JJ., dismissed a writ petition seeking the termination of a 23-week old pregnancy, on grounds that termination of pregnancy was not satisfying the requirement under Section 3 of Medical Termination of Pregnancy Act, 1971 (‘Act’), and also, no medical documents were brought before the court to satisfy applicability of Section 5 of the Act. The petitioner had pleaded that she had epilepsy and wanted to further continue her studies, and that she intended her divorce to be taken as a ground for termination of pregnancy. The respondent however contended that, no medical advice was found showing imminent danger to the health of the petitioner on non-termination of the pregnancy. The Court relied on Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 and Z v. State of Bihar, (2018) 11 SCC 572, where it was held that, the provisions of the Act are reasonable restrictions to the reproduction choice of a woman guaranteed under Article 21 of the Constitution. This Court further observed that, the said provisions of the Act cannot be invoked as the requisite conditions (as provided under the Act) were not met, and hence held that, the petitioner cannot be allowed to terminate her pregnancy on ground of matrimonial discord.…
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No appointment on compassionate terms if the person was minor at the time of death of his father

High Court of Jharkhand: A Single Judge Bench comprising of Shree Chandrashekhar, J., dismissed a writ petition wherein the petitioner was seeking quashing of order(s) dated 28.05.2013 and 24/25.04.2012 passed by the respondent herein. The petitioner had filed an application for his appointment on compassionate terms, with the respondent company after death of his father who was an employee of the respondent company. However, the said application was rejected on the grounds that, the petitioner was a minor at the time of his father’s death. The Court observed that, the petitioner was 8 years old at the time of his father’s death and hence, as per NCWA-VI, under which minimum age for keeping a male dependant on live roster is 12 years, the petitioner could not have been enrolled for compassionate appointment on attaining majority and further, the High Court relied on National Institute of Technology and Others v. Niraj Kumar Singh, (insert citation) wherein no compassionate appointment was granted to the son of the deceased who was only 1 year old at the time of his father’s death. Accordingly, the petition was dismissed and the impugned order(s) were upheld. [Gangadhar Thakur v. Central Coalfields Limited, W.P. (S) No. 1925 of 2014] Tweet The post No appointment on compassionate terms if the person was minor at the time of death of his father appeared first on SCC Blog.…
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Acceptance of fee in lieu of unauthorised professional service does not amount to illegal gratification under Prevention of Corruption Act, 1988

High Court of Gujarat: A Single Judge Bench comprising of  R.P. Dholaria, J., decided  an appeal against the judgment dated 25.02.2004, wherein the accused was charged under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988 (‘Act’). The brief facts of the case being that, the wife of the complainant was suffering from back pain, and thus had visited a Primary Health Center, where the accused who was serving as a Medical Officer, had demanded Rs 1700 as operation fees (for operating the wife of the complainant), which the complainant had claimed to be an amount of illegal gratification. This Court relied upon Kanwarjit Singh Kakkar v. State of Punjab, (2011) 13 SCC 158, wherein the Supreme Court had held that, the amount alleged to have been accepted is not by way of gratification for doing any favour to the accused, but admittedly by way of professional fee for examining and treating the patients. Accordingly, the appeal was allowed and the impugned judgment was quashed and set-aside. [Rambhai Hajabhai Garaniya v. State of Gujarat, R/CR.A/340/2004, decided on 02-05-2018] Tweet The post Acceptance of fee in lieu of unauthorised professional service does not amount to illegal gratification under Prevention of Corruption Act, 1988 appeared first on SCC Blog.…
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DNA Report — A substantial evidence; to be enclosed with charge sheet

Karnataka High Court: A Single Judge bench comprising of John Michael Cunha J., decided a criminal petition filed under Section 439 of the Code of Criminal Procedure, 1973  for grant of bail due to appearance of fresh evidence on record. The crux of the case being that, earlier a bail application filed by the petitioner was dismissed by the Court, subsequent top which a DNA report was produced by the Investigating Agency which mentioned the petitioner not to be the father of the victim’s male child. The petitioner, had further alleged the Investigating Agency to have deliberately not filed the report along with the charge sheet, as it was against the prosecution case. The High Court after perusal of all the records found that, the report should be a part of the charge sheet as it is a substantial evidence in favor of petitioner for grant of bail, and hence ordered the trial court to consider the bail application in light of fresh evidence i.e.; the DNA Report and observations of the High Court and, further directed the trial court to pass appropriate orders keeping in mind the law enumerated in Section 35(2) of the Protection of Children from Sexual Offences (POCSO) Act, 2012.…
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Rape accused acquitted in light of the case falling in arena of ‘suspicion’ and no evidence: Bombay HC

Bombay High Court: A Division Bench comprising of B.R. Gavai and Sarang V. Kotwal JJ., addressed a Criminal Appeal by setting aside the order of conviction and sentence in view of considering the matter in the purview of ‘benefit of doubt’. In the present matter, the Appellant was convicted under Sections 376 (f) and 302 IPC for committing the rape of a 6-year-old child and murder thereafter. In accordance to the FIR lodged by the victim’s father. The appellant was found to be sleeping beside the deceased. The deceased was found with blood and injuries to her private parts. While noting the facts of the case, the High Court found that the post-mortem report states the final cause of death as ‘death due to shock due to vaginal and anal tear with multiple injuries over body’. Also, the fact to be noted that was found on during the medical examination of the Appellant was that he had no injuries on his person with no blood or semen on any of the clothing of the appellant. There was no evidence of semen or vaginal fluid been taken off by washing from the private parts of the appellant. Therefore, the case of prosecution lied only in the arena of ‘suspicion’ and the chain of circumstances against the appellant seemed to be incomplete, which awarded the appellant ‘benefit of doubt’ by acquitting the appellant in the present matter.…
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Not stopping abuse of senior citizens is a symbolic collapse of legal system: Chhattisgarh HC

Chhattisgarh High Court: A Single Judge Bench comprising of Goutam Bhaduri, J. allowed a petition filed under Section 482 CrPC by a senior citizen couple. The petitioners, aged 89 and 77 years, were father and mother of Respondent 1. They invoked jurisdiction of the Court by moving an application under Section 24 of Maintenance and Welfare of the Parents and Senior Citizens Act, 2007 for vacating the house by removing their son and daughter-in-law. A police complaint was filed alleging that the petitioners were subjected to torture, cruelty and misbehavior; they were isolated and cornered; made to live in captivity in their own house. The petitioners sought for help. The trial court dismissed the application on the ground that the eviction prayed for was of a civil nature, therefore, the application could not be entertained. The petitioners filed a revision before District and Sessions Judge which was also dismissed. Aggrieved thus, the petitioners were before the High Court. The High Court referred to the Statement of Objects and Reasons of the Act. It was noted that by virtue of Section 3, the Act has an overriding effect notwithstanding anything inconsistent therewith contained in any other statute. In the instant case, the ownership of the house belonged solely to the petitioner.…
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Single co-owner/co-landlord cannot, by himself, terminate a tenancy

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J. dismissed an appeal filed under Section 96 of CPC  against the judgment of the trial court whereby appellant’s suit for possession and mesne profits was dismissed. The suit was dismissed by the trial court holding that the appellant being only one of the co-owners, could not claim possession in absence of support from other co-owners. It was held that a  single landlord could not terminate the tenancy. Aggrieved thus, the appellant preferred the instant appeal. The High Court relied on Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and Jagdish Dutt v. Dharam Pal, (1999) 3 SCC 644 to hold that one co-owner/co-landlord is not entitled on his own, in the face of opposition from other co-owners/co-landlords, to terminate the tenancy for seeking possession of the tenanted property and/or mesne profits. In the present case, the other co-owners had infact opposed the termination of tenancy as well as the suit filed by the appellant. Observing that the appeal was completely frivolous, the High Court held that the suit was rightly dismissed by the trial court. Therefore, the appeal was dismissed. [Navin Chander Anand v.…
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Court cannot be used as a tool to create evidence; application under Order 10 Rules 9 and 10A CPC rejected

Himachal Pradesh High Court: A Single Judge Bench comprising of Ajay Mohan Goel, J. dismissed a petition filed against the order of trial court whereby petitioner’s application under Order 10 Rules 9 and 10A CPC was rejected. In the abovesaid application, the petitioner had prayed to the court that a revenue expert be appointed to prepare excerpt and to report the history of the suit land as per pedigree table, as in its absence, the petitioner won’t be able to prove his case. Trial court rejected the application holding that it was for the petitioner to prove his case by leading his own evidence. Aggrieved thus, the petitioner filed the instant petition. The High Court found no merit in the petition. It noted that the suit was filed somewhere in 2008; issues were framed and evidence was led. It was at that stage of hearing that the said application was filed. The Court observed that before ordering any investigation under the said rules, the court has to be satisfied that the same shall be necessary for the purpose of adjudication. Further, in the present case, the matter being a property dispute, the onus was on the petitioner to prove his case.…
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No child can be held back or expelled till the completion of elementary education in light of Section 16 of the RTE Act, 2009

Chhattisgarh High Court: A Single Judge Bench comprising of Sanjay K. Agrawal J., decided a writ petition filed challenging the order of school authorities (DPS) to hold back the petitioner (student) from being promoted to a further class, due to low attendance being the major cause. The present case constitutes the facts that the petitioner a Class VIII student who attended 11 school days out of 207 due to which he was barred for the final examinations but on the order of District Education officer he was allowed to appear for the said examinations. Even after being given permission the petitioner appeared only for 4 subjects out of 6. Further, the petitioner was not promoted to Class IX for the reasons of low attendance, which led to him filing of this Writ Petition. The contention of the petitioner was that in accordance with the provisions of the Right of Children to Free and Compulsory Education Act, 2009, right to education is a Fundamental Right under Article 21-A of the Constitution of India and Section 16 specifies the provision that ‘no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education’.…
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Parents can evict children under the provisions of MWPSC Act, 2007 upon being harassed: Bombay HC

Bombay High Court: A Single Judge Bench comprising of R.D. Dhanuka, J., addressed a petition filed under Article 227 of the Constitution of India in regard to an order passed by the Tribunal for Welfare of Parents and Senior Citizens under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The facts of the case stated that Respondent 1 had prayed for maintenance and eviction of her son, the petitioner and his family on various grounds for which the tribunal had passed an order in favour of Respondent 1. The said order of the tribunal was challenged by the petitioner son. The contentions of the petitioner were that the order of the tribunal was impugned as the complaint was against the petitioner and not his son, wife, and daughter but the tribunal’s order was against all. He also submitted that the entire order is without jurisdiction as the tribunal has no jurisdiction under Section 4 of the said Act. While giving severity to the facts such as harassment, cruelty and torture being caused to Respondent 1 by the petitioner and his family, the Court firstly considered the issue of jurisdiction, for which it placed reliance on Sunny Paul v.…
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