Category Archives: Supreme Court of India

Victims can get Bail Revoked

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Bail granted to those accused of perpetrating crimes can be cancelled.Section 437(5) of the CrPc says that any court which has released a person on bail (for a non-bailable offence) may, if it considers it necessary to do so, direct that such person be arrested and commit him to custody.Special powers are reposed in the High Court and Court of sessions under sec 439(2) whereby either court may direct that any person who has been released on bail be arrested and committed to custody.Usually, bail is cancelled because of the accused having misused bail.

In Public Prosecutor v. George Williams (1951 Mad 1042) the Madras High Court pointed out five grounds on which a bail could be cancelled:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail;

(b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things;

(c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc.

(d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and

(e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him

However, in what appears to be a landmark judgment, a bench of the Supreme Court comprising Justices Tarun Chatterjee and V S Sirpurkar have ruled that bail can be revoked if the accused is facing charges of having committed a crime such as murder and the victim of the crime raises valid objections to the grant of bail.

Observing that ‘the complainant can always question the merits of the order granting bail’, the Supreme Court came to this conclusion in the case of Brij Nandan Jaiswal v Munna @ Munna Jaiswal & Anr. The Bench categorically stated that ‘it is not as if once a bail as granted be any court, the only way to get it cancelled is on account of its misuse’.

 

 

 

 
 

 

 

Absurd Reason for Rape Acquittal

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If there ever was a crazy reason to let a man get away with rape, it’d have to be this reasoning behind the judgement of the Orissa High Court: “Law is well settled that it is not possible for a single man to commit sexual intercourse with a healthy adult female in full possession of her senses against her will.”

 At first glance, the reasoning is just about as ‘sound’ as it was in the “Jeans are difficult for another to remove. Therefore, a woman who was wearing them could not have been raped.” case and as repugnant as Judge Archie Simonson’s “Women are sex objects whether or not they like it.” logic.

 

In the case in which the High Court came up with this extraordinary pronouncement, a healthy tribal woman whom the High Court deemed capable of resisting rape was raped and there was only one witness to the crime. The High Court concluded that the perpetrator had either been falsely accused or that the sex was consensual. The court based its conclusions upon the reasoning that there was no evidence of any resistance on the part of the woman.

 

Luckily, the Supreme Court did not agree with the it. On December 16, 2008 Justices Arijit Pasayat and Mukundam Sharma quashed the acquittal order passed by the High Court and proclaimed:

 

“The conclusions are not only confusing but border on absurdity.” The apex court also professed itself to be baffled as to why the HC said that the law says that it is impossible for a single man to rape a healthy woman who was in possession of her senses since, as it pointed out, “there is not even a single decision which says so.”

 

The Supreme Court also reprimanded the High Court judge for failing to adhere to judicial discipline by disclosing the name of the rape victim.

 

(The relevant case is State of Orissa v Sukru Gouda.)

The Contempt of Courts Act

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The Contempt of Courts Act was enacted in 1971. It extends to the whole of India although it does not apply to the State of Jammu and Kashmir except with reference to contempt of the Supreme Court.

The Act speaks of both civil and criminal contempt of court and of how they are to be dealt with. However, no court can impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.

The Act does not enlarge the scope of contempt of courts. And any defence which is a valid defence in any proceedings for contempt of court may be availed of as a defence in contempt proceedings notwithstanding any of the provisions of the Contempt of Courts Act, 1971.

The Chief Justice of India, K G Balakrishnan has said that the provisions of the Act aim to uphold the majesty of the judiciary and not terrorize the media.

In the judgment in the Arundhati Roy contempt case, delivered on March 6, 2002, a Bench of the Supreme Court comprising Justices G B Pattanaik and R P Sethi explained the law of contempt with reference to quite a few cases in the following terms:

“The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner) [AIR. 1995 SC 2348], the Supreme Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalising it. When the court exercises this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.

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IT Auction Sales Sacrosant

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In an appeal filed by Janatha Textiles, a partnership firm of Radhey Shyam Modi, Pawan Kumar Modi, Padmadevi Modi and Indira Chirmar, a firm that had been in tax arrears, the Supreme Court not only said that the IT department could attach the property of defaulters to recover the debt but also that if it sold the property, the sales were sacrosanct.

A Bench of the Supreme Court comprising Justices Ashok Bhan and Dalveer Bhandari held that auction sales by the Income Tax Department could not be interfered with unless there were grave irregularities in the process of sale. It said that it was necessary to extend such protection to such sales to ensure that auctioned property fetched the market value or fair price of the property.

Auctions are usually governed by Sections 64 and 20 of the Sales of Goods Act, and relevant case law. There are also provisions in the Port Trust Act and the Code of Civil Procedure which deal with certain kinds of auctions although the provisions in these two statues are not universally applicable.

In addition to statutory provisions, the terms of the auction concerned also play a role of vital importance. Auctions are merely a kind of sale, and the terms of the auction are a reflection of the intention or to parties. Although goods are usually sold by an auctioneer on behalf of the owner, there is nothing to stop a person from selling his own goods in an auction.

An auction is not in itself an offer, it is merely an invitation to treat. In other words, each bid made at an auction is an offer and it is open to the auctioneer to accept or reject that offer provided that he acts in accordance with the terms of the auction. The general principle of the auction is, however, that every higher bid supersedes the previous bid.

The concept of an auction Section 64 of the Sale of Goods Act is a guiding factor on the principles of an auction. It says:

In the case of sale by auction–

(1) where goods are put up for sale in lots, each lot is prima facie deemed to be the subject of a separate contract of sale;

(2) the sale is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner; and, until such announcement is made, any bidder may retract his bid;

(3) a right to bid may be reserved expressly by or on behalf of the seller and, where such right is expressly so reserved, but not otherwise, the seller or any one person on his behalf may, subject to the provisions hereinafter contained, bid at the auction;

(4) where the sale is not notified to be subject to a right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer;

(5) the sale may be notified to be subject to a reserved or upset price;

(6) if the seller makes use of pretended bidding to raise the price, the sale is voidable at the option of the buyer.

The section similar to Section 58 of the English Act, and can therefore be construed in similar terms. It is however important to bear in mind that the statutory provisions contained in Section 64 may be subject to a contract to the contrary. This effectively means that it would be the terms of the auction concerned which would prevail.

Reference materials and relevant cases:

  1. Pollock and Mulla, The Sale of Goods Act 
  2. (1869) LR 9 Eq 60
  3. [1895] All. E.R (Rep) 829
  4. [1907] 2 K.B. 1
  5. AIR 1961 Cal 54
  6. AIR 1961 MP 274
  7. [1963] Suppl. 2 S.C.R. 608
  8. Ouchterloney Valley Estates Ltd. v. State of Kerala (23.10.1964 – SC)
  9. AIR 1980 SC 1468
  10. AIR 1989 All 64
  11. AIR 1992 MP 250
  12. 2005(190)ELT161(Cal) 

Compensation to 12-Year-Old Crippled in Motor Accident

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On May 14, 2008, a Bench of the Supreme Court comprising Justices S B Sinha and L S Panta United India Insurance Co. Ltd. to pay higher compensation to a woman named Sapna who had been crippled and whose marriage prospects had suffered due to an accident she suffered when she was twelve years old.

In its judgment, the Supreme Court spoke of the principles governing a claim petition for assessing the damages in case of bodily injury suffered. It said that while awarding the compensation, the Tribunal should consider all relevant factors so as to enable the insured to be put in the same position as if he had not sustained any injury.

The principle of Restitutio-in-integrum may be applied in a case of nature. Pecuniary loss and non-pecuniary loss are required to be pressed under certain heads. So far as the pecuniary loss is concerned, the same can be ascertained. What is required to be done is a balancing act by awarding such sum which, on the one hand, shall take care of the loss suffered by the claimant for the present time and future pecuniary benefits and, on the other, pecuniary advantages which from whatever source comes to them by reason of such injuries. So far as non-pecuniary loss is concerned, the same has to be assessed broadly under certain heads, namely, damages for physical pain, mental suffering etc. besides the amount spent on medical treatment, if any.

In Sapna’s case, expenditure for medical treatment was granted. The High Court, in its judgment, noticed that although the Tribunal had referred to the likely effect on the matrimonial prospects of the appellant on account of permanent disability, due regard in that behalf had not been given. The fact that she would remain crippled throughout her life was also noticed but it did not appear to the Supreme Court that any serious consideration was bestowed thereupon.

The Supreme Court said that in given cases, the courts may deviate from the structured formula. In terms of the Second Schedule, where the deceased or injured were not having any income, the statute presumes an income of or about 15,000/- per month. If having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs.2,25,000/- would be payable.

Besides the said sum, not only some amount of compensation should be awarded under the heading of mental agony but also some provision should be made for future treatment.

In Abati Bezbaruah v. Dy. Director General, Geological Survey of India & Anr. [(2003) 3 SCC 148], it was held:

“11. It is now a well-settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation from the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case.”

In Nagappa v. Gurudayal Singh & Ors. [(2003) 2 SCC 274] wherein a Three Judge Bench of the Supreme Court opined that the law does not permit passing of any further award after the final award but that no one can suggest that it is improper to take into account expenditure genuinely and reasonably required to be incurred for future medical expenses. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.”

When a person becomes completely incapable of doing any work and virtually has no enjoyment for life, the same form relevant factors and, thus, requires consideration for the purpose of determining a fair and reasonable amount of compensation.

(This article is an edited extract of the judgment.)

Sexual Harassment in the Workplace

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The State of Karnataka plans to enact a law to protect women against harassment in work places.

In the 1997 case of Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines and norms for observance at all work places or other institutions, until a legislation to prevent sexual harassment in the workplace was enacted. Such a Bill exists but it has not yes been passed by Parliament and become law.

The guidelines laid down by the Supreme Court were laid down in the exercise of the power available to it under Article 32 of the Constitution for enforcement of the fundamental rights and are treated as the law declared by the Court under Article 141 of the Constitution. This means that they are binding on all Indian courts.

The GUIDELINES and NORMS prescribed by the Supreme Court are:

1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Govt. Officer Not Paid Extra for Extra Duties

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In the case of C N Vasudevan v. Union of India decided on May 7, 2008, a Bench of the Supreme Court comprising Justices Sema and Katju denied a Government Officer any honorarium or remuneration for taking on additional duties which could be performed within his normal working hours.

The issue in this case was whether C N Vasudevan, a Regional Passport Officer was entitled to the grant of honorarium/remuneration for the period he worked as Protector of Emigrants over and above his salary as Regional Passport Officer, Ahmedabad.

He had prayed to the Central Administrative Tribunal an honorarium for working as the Protector of Emigrants since the responsibilities of the Regional Passport Officer and are quite different. His prayer was allowed by the Tribunal. The High Court, by its impugned order, affirmed the order of the tribunal.

Hence, this appeal was made by special leave to the Supreme Court.

The counter affidavit filed on behalf of the Regional Passport Officer, Ahmedabad before the Tribunal states that in all 14 Passport Officers were authorised to perform the functions of Protector of Emigrants so as to decide whether a person intending to depart from India is an emigrant or not for the purpose of Emigration Act, 1983. The duties of Protector of Emigrant were part of the normal duty of the Regional Passport Officer and were to be performed by the Regional Passport Officer during the normal office hours on working days only.

The Supreme Court agreed with this contention. It then gave an analogous example: the District Magistrate/Collector of a district is often also the prescribed authority under various State and Central Acts for discharging functions under the said Acts. This does not entitle the District Magistrate/Collector to any extra remuneration over and above his normal salary.

(This post is an edited extract of the judgment.)