ISSUE - XVII (DECEMBER 21-DECEMBER 27)



VOX IURA MAGAZINE- ISSUE 17
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1. No interference needed when adult woman marries as per her choice and decides to convert: Calcutta HC

Case Name: Palash Sarkar v. State of West Bengal & Ors., WPA 9732 of 2020.

The Calcutta High Court Bench of Justices Sanjib Banerjee and Arijit Banerjee was dealing with a petition moved by a father to trace his "missing" 19-year-old daughter, After the woman was traced, she was found to have married and converted to the religion of her husband. A statement given before a police officer indicated that she had done so of her own free will and that she did not wish to return to her parental home.

The Bench sternly observed that if an adult marries as per her choice and decides to convert and not return to her parental house, there could be no interference in the matter.

The father-petitioner, however, raised apprehensions that she may have been induced to give such police statement. Therefore, the woman gave a second statement before the Magistrate, again indicating that she was not under any coercion or undue influence. This was also not sufficient to convince her father. The Court noted that despite a clear and clean report being furnished, the father harbours some suspicion. The Court made it clear that there cannot be any interference, whatsover. However, to allay the father's suspicions, the Court directed the daughter to meet Additional Public Prosecutor, Saibal Bapuli in his chamber without anyone else present in the room, so that he may file a short report on the matter by December 24, 2020.


2. Sister Abhaya Case:

Background: On 27.03.1992, Sister Abhaya, a nun who was an inmate of St. Pius X Convent Hostel, Kottayam, was found dead and her body was recovered from a well situated on the rear side of the convent. Based on the First Information Statement (FIS) made by the then Mother Superior of the convent, crime was registered in the Kottayam West police station under section 174 Cr.PC (Police to enquire and report on suicide, etc.,). The Superintendent of Police, Sri. K. T. Michael, after the investigation reported before the SDM that it is a case of suicidal death by drowning. Considering the request made by the father of Sister Abhaya, the matter was entrusted to CBI.

On 05.12.1996, CBI reported that it was unable to confirm whether it was suicidal or homicidal and requested to close the case as an untraced one. This report was not accepted by the Chief Judicial Magistrate, Ernakulam, and directed to investigate further. The 2nd final report which was laid on 12.07.1999 took the stand that it was homicidal but admitted that the identity of the accused could not be established. The Chief Judicial Magistrate again rejected the report as unsatisfactory and directed the CBI to reopen the case.

Final Report: On 17.07.2009, the final report was laid down arraying Father Thomas Kottoor, Father Jose Poothrikkayil, and Sister Sephy as accused. Upon investigation, it was found that Sister Abhaya was murdered by the convicts after she happened to witness their intimate relationship inside the convent. To silence her, the accusedhit her on the back of her head with a small axe kept in the kitchen, and her body was flung into the well situated on the rear side of the well.

Judgment: After 28 years, the court of the Special Judge CBI, Thiruvananthapuram based on the circumstantial evidence found Father Thomas Kottoor guilty of offences under section 302, 201 r/w 34 and 449 of IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 5,00,000 for murder (s.302), 7 years imprisonment, and Rs. 50,000 fine for the destruction of evidence (s.201), life imprisonment, and Rs.1L for trespassing (s.449) in default of payment of fine shall undergo simple imprisonment for two years.

Sister Sephywas convicted under Section 302 and 201 of IPC. She will also serve life imprisonment and has been charged with a fine of Rs 5 lakhs.


3. Mere Offer of Refund by developer does not disentitle flat buyers from claiming compensation for delay in handing over possession: SC

Case Name: DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association, CA 3864-3889/2020.

The Supreme Court has observed that the flat purchasers are not disentitled from claiming compensation merely because the developer offered an exit option of refund of consideration together with interest. The Bench comprising Justices DY Chandrachud, Indu Malhotra and Indira Banerjee, while disposing an appeal against an order passed by National Consumer Disputes Redressal Commission (NRDC), observed that for a genuine flat buyer, who has booked an apartment in the project not as an investor or financier, but for the purpose of purchasing a family home, a mere offer of refund would not detract from the entitlement to claim compensation. While delivering the judgment, the Bench placed reliance upon the cases of Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghvan, (2019) 5 SCC 725 and Wing Commander Arifur Rahman Khan and Aleya Sultana & Others v. DLF Southern Homes Pvt. Ltd. (Civil Appeal No. 6239 of 2019).


4. No Blanket Bar To Grant Anticipatory Bail In Cases Of Illegal Quarrying Or Mining, Smuggling Of Sands, Minerals: Supreme Court

The Supreme Court recently clarified that blanket restriction cannot be placed in cases of illegal quarrying / mining, theft and smuggling of sand and minerals and that each case has to be considered on merits.

The bench in denying anticipatory bail on string of petitions before it observed that the order contemplated under Section 438 of the Code of Criminal Procedure is to be granted or refused by the High court or court of session after exercising its judicial discretion wisely. "A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of matter regarding which it is required to be exercised, has to be used with due care and caution. Further anticipatory bails cannot be granted in cases of large magnitude affecting and impacting very large number of people" reiterated the bench.


5. Strengthen Safeguards For Whistle Blowers : Delhi HC

The Delhi High Court (HC) is currently hearing a writ petition, which has challenged the constitutional validity of the existing provisions of the Companies Act 2013.Current provisions only require listed companies to have a vigil mechanism to address whistleblower complaints.These companies are those which accept public deposits and companies that have loans from banks or public financial institutions of over Rs. 50 crore.

Concerns Highlighted:

Absence of any specific guidelines on the functioning of a vigil mechanism has led to companies not ensuring that whistleblower complaints are addressed in a timely manner.Current provisions do not provide any guidelines on the functioning of the vigil mechanism for companies.Companies were able to retaliate against employees raising whistleblower complaints and even terminated their employment as any civil suit for such actions could be too expensive and time-consuming.Parties filing civil suits are required to first pay court fees, typically amounting to around 1% of damages claimed.

Suggestions:

Private sector companies above a certain threshold of turnover or employees should set up a vigil mechanism.Large private sector companies, including subsidiaries of large multinational corporations, should be regulated differently from small private sector companies and should be required to have vigil mechanisms.The law should require a permanent internal committee and specify directions on the functioning of the committee.For that, the government should consider issuing guiding principles on such as internal reporting to and review by the audit committee, timelines for addressing grievances and consideration by the board on nature and number of open matters and outcomes of resolved matters, etc.

However, regulating the functioning of vigil mechanisms pose a risk of over-regulation and micro-management.The mechanism should provide for “adequate safeguards against victimization of persons who use such mechanisms and make provision for direct access to the chairperson of the audit committee in appropriate or exceptional cases.

There was a need for a deterrent against frivolous complaints.

Whistleblowing:

According to the Companies Act, whistleblowing is an action aimed at drawing the attention of stakeholders to instances of unethical practices in an organization.A whistleblower can be anyone who chooses to expose wrong practices and has evidence to support the allegations.

They can be either from within or outside the organization, such as current and former employees, shareholders, external auditors, and lawyers.In India, whistleblowers are protected by the Whistleblowers Protection Act, 2014.

It provides for the protection of their identity and also has strict norms to prevent their victimization.In January 2020, the Securities and Exchange Board of India (SEBI) came out with a new mechanism to reward whistle-blowers and other informants for sharing information about insider trading cases.

Way Forward:

Suitable legislation must be enacted to provide protection to innocent whistleblowers and strengthening of the whistleblower protection mechanism will help in ensuring that the integrity of democracy is protected, cherished and upheld.It is important that the law empower citizens to come forward if they have evidence of unethical conduct within the organization.

6. Karnataka High Court Grants Relief To Nlsiu Student Who Was Denied Promotion Citing Attendance Shortage:

CASE NAME: Sri Dayan Warsi v The National Law School of India &Ors

The Petitioner was denied admission to the 4th year of the course by the respondent university as per the Academic Examination Regulations (AER), 2020 on the grounds that he has a shortage of attendance in two courses and has secured an ‘F’ Grade in Criminal law III. But, the court in the case of Aakashdeep Singh v. NLSIU & Anr has held that the provisions of AER, 2020 have no retrospective effect and stated that the present case of the petitioner ought to have been treated under AER 2009. The Counsel on behalf of the respondent argued that even under AER, 2009 the petitioner is not entitled to condonation of attendance shortage since he had little less than 67% of attendance which is the minimum prescribed for seeking condonation. Rejecting the contention and observing various other clauses in the regulations the court opined that “what is being construed are the ‘campus regulations’ and not the ‘cattle Trespass Act’. Furthermore, taking into fact that the university in several other cases had granted condonation of shortage of attendance under the very same regulations, directed the university to forthwith promote the student to 4th-year B.A.LL. B (Hons) by issuing the Writ of Certiorari and a Writ of Mandamus.


7. Truck Driver Illegally Detained By Police - Patna Hc Asks Government To Give 5l Compensation:

CASE NAME: Sumit Kumar v. State of Bihar &Ors.

On 29th April 2020, the police of Parsa Police station illegally detained the petitioner’s vehicle along with its driver namely, Jitendra Kumar without registering an F.I.R. The court found that only after the instant petition the police have registered the case and directed the Director-General of Police, Bihar to examine the matter. The report laid by the Director-General of Police found the following irregularities by the SHO:

  1. No FIR registered within the time

  2. The Statement of injured not recoded.

  3. No vehicle inception has been done.

  4. Without any rhyme and reason, the vehicle and the driver were illegally detained.

The Court observed that the illegal detention of the detenu for more than 35 days has violated his right to personal liberty enshrined under Article 21 of the Indian Constitution. After referring to various precedents to clarify that relief of monetary compensation, as exemplary damages can be granted under Article 32 or 226 for established infringement of the right guaranteed under Article 21 the court directed the State of Bihar to pay an amount of Rs. 5,00,000 as compensation to the detenu within six weeks.


8. Charging additional costs for carry bags at payment counter is an unfair trade practice: Ncdrc

Case name: Big Bazaar (Future Retail Ltd) v. Sahil Dawar

The National Consumer Disputes Redressal Commission (NCDRC) dismissed a review petition filed wherein the issue was whether additional cost for carry bags was deficient and an unfair trade practice. The commission observed that the customers had the right to know that there will be an additional cost and the salient specifications of the carry bag before he decides to exercise his choice of patronizing a particular retail outlet and before he makes the selection of goods.


9. Hc: No Bar On Authorities To Issue Patta After Verification

Pointing to the fact that several petitions were pending before the court pertaining to prevention of encroachments, land grabbing and other such issues, the Madurai Bench of the Madras High Court observed that those cases would not stand in the way of a Tahsildar or any other authority to issue patta in the absence of any interim or stay order.

Justice S. Vaidyanathan observed that there was no bar on the authority concerned to issue patta after verifying the records available in the Sub-Registrar’s office and revenue records. Also, nothing prevents the authority to inspect a place as it would ensure removal of encroachments and violations in constructions in order to restore land sites.

The court made the observations while dismissing a petition filed by P. Periyakaruppan of Melur who challenged rejection of his application for name change in patta. The court took into account the fact that the application was rejected on the ground that a civil suit was pending before the Melur Sub-Court in connection with the property. The court observed that though the civil court could appoint an advocate commissioner to ascertain whether there were any encroachment, the Civil Procedure Code (CPC) itself authorized the court to inspect the site in question. The court directed the Melur Sub-Judge to take up the issue and decide the case expeditiously.




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