The complainant in the present case even though stated that she was in love with the boy and they promised to marry each other, had alleged that the accused called her at his home where he was alone and forcibly made physical relations with her. She had also alleged that she was taken to Vaishno Devi Temple where he made her obscene movie and threatened her to upload on the internet.

Justice Thakur also observed that- “As per the terms of the compromise, the parties have solemnized marriage with each other and they are now residing together as husband and wife happily, hence, it would be in their welfare if the present FIR is quashed.”
Prior to this case, the Punjab and Haryana HC had held that FIR alleging rape, during the subsistence of a love affair between couples, can be quashed on the basis of compromise and subsequent marriage of the couple

This order is in direct contravention to the observations made by the Apex Court; in the case of Parbatbhai Aahir and Ors. Vs. State of Gujrat and Ors; FIR pertaining to serious offences such as Rape cannot be quashed by virtue of compromise or settlement among the parties. This order blatantly violates the spirit of the order in State of MP v Madan Lal, wherein it held that in a case of rape or attempt of rape, the conception of compromise under no circumstances can exist.

The post Injustice in the name of compromise ? appeared first on Legal Desire Media and Insights.

United Human Rights Federation was represented by senior advocate Parag Tripathi, their contention being the unfortunate slack in the implementation of the National Building Code in its true spirit.

The PIL was filed through advocate VK Biju citing the National Crime Records Bureau, data in 2014, according to which, a total of 20,377 cases of fire accidents were reported in the country during 2014, which injured 1,889 persons and caused 19,513 deaths.

“The cause-wise analysis of fire accidents revealed that 18.3% of 20,377 fire accidents were reported in residential/dwelling buildings. Maximum cases of fire accidents were reported in Maharashtra (4805 out of 20,337), accounting for 23.6% of total such cases.”

It was also added that there are blatant violations in, even, the construction of buildings like the Hon’ble Supreme Court and Parliament House, the two utmost important building resembling the symbol of democracy, as far as the Fire Safety Management concerns are considered. Various news reports published in The Times of India on November 27, 2014, starting “No fire safety certificates for Parliament, SC in 10 years” or the report of The Hindu as the “SC and Parliament buildings not fire-safe” made the petitioner extremely concerned over the present safety conditions.

It was also alleged that in the name of urbanization, buildings are constructed mainly based on the chicanery of the developers and as disturbing as it may sound, the states overlook many such cases. Such an allegation was inclusive of illegal construction of schools, universities and educational institutes, even airports, resulting in an exponential rise in the risk of inevitable tragedies.

The National Building Code of India, 2016, in which requirements of fire and life safety have been thoroughly revised and upgraded to meet the challenges of modern complex building types, including high rises, have not been implemented in its true spirit.

“The Code provides for fire lifts in high rise buildings exclusively for the use of firemen in case of an emergency. Further, the code provides norms for the construction of fire-scape staircases in buildings for the use of stairwells during emergency situations.  Further, the code provides for heavy static water storage in the form of underground water tank be made available in buildings to fight fire at the rate of 1000 liters  per minute.  Further, the code requires that buildings should install automatic sprinklers in the basements used for car parking or storage occupancy exceeding 200 m2 area.”

The petition prayed for an order or direction compelling the respondents to develop a “centralized audit mechanism” so that a quarterly or yearly audit can be conducted over the existing buildings in furtherance of maintaining the updated status of the buildings, mainly involving public access like shopping complexes, malls, schools and educational institutions and courts etc.

The bench sought the Centre’s reply and posted the matter for April 9.
 

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After assembling outside gate number 6 of the High Court, hundreds of lawyers took part in the protest march which proceeded to the iconic Charminar, about a kilometre away, where they raised slogans and interacted with the media. The protest march went on without causing any inconvenience to the residents and commuters along the route. Security forces including the Telangana Police and the Rapid Action Force dotted the route.

The lawyers demanded the immediate attention of the Central Government on multifarious issues ranging from vacancies in the judiciary to the setting up of a Circuit Bench of the Supreme Court in Hyderabad. Challa Dhanamjaya, President of the Andhra Pradesh Advocates Association, avowed that protesting against pendency by boycotting work was a contradiction, however, in his opinion this was the only way to put pressure on the authorities, who have ignored the longstanding demands of the lawyers.

The lawyers also expressed concern against the implementation of Section 41-A of the Code of Criminal Procedure, 1973, which empowers the police to issue a notice of appearance to a person against whom a reasonable complaint has been made. The President stated that the State Police were using their power to grant bail indiscriminately.

“Only those that can meet the demands of the police are being benefited, the police is not exercising this power judiciously”, he added.

It was, however, also agreed that if properly exercised, the power would reduce the burden on the subordinate judiciary.

Jalli Kanakaiah, President of the Telangana High Court Advocates Association (THAA), said that the geographic location of Hyderabad made it an ideal place to host a Circuit Bench of the Supreme Court.

“Its location vis-a-vis other Southern States, and excellent connectivity makes it a good choice, he added.”

The High Courts all over the nation seem to be facing this perennial problem of the dearth of quality judges further exacerbating the overburdened judicial framework, demands have been made earlier at the High Courts of Karnataka, Odisha and Calcutta. With the various negatives in the judicial framework of the country, the omnipresent hindrance of vacancies is only slowing down the already sluggish system.

The High Court of Judicature at Hyderabad currently has 31 vacancies, against a sanctioned strength of 61 judges.

The post In a rare show of solidarity the Lawyers from the Telangana and AP High Courts came together to protest against ingrained vacancies appeared first on Legal Desire Media and Insights.

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“Article 215 of the Constitution of India stipulates that the High Court is a Court of Record. Consequently, it is only the order sheets that can be read as proof as to what transpired in Court. Litigants have no right to selectively quote isolated Court’s observations (with embellishments) without reference to the context.”

The Bench further went on to explicate the reason for the Constitution makers to confer the status of Court of Record upon the High Court, in the first place and the need for judges of these Hon’ble Courts to be able to decide the matter without any sort of encumbrances. It stated,

“The rationale behind the Constitution conferring the status of Court of Record upon the High Court is that Judges of the Court have to discharge their duties without fear. Moreover, in a Court, there has to be a free debate. If a Judge is not able to ask the questions and seek clarifications, the rule of law will be in serious jeopardy. In fact, no Judge will be able to administer justice if he is made a witness in the case. Such an attempt has to be firmly nipped in the bud.”

The post Delhi HC asks Litigants to not use court observation, selectively, out of context appeared first on Legal Desire Media and Insights.

The aforementioned committee was formed as a result of an order passed on March 22, 2017, in furtherance of its constitution, to assist and advise the Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are restricted from being in active circulation on the internet.

The Committee after extensive deliberations with various stakeholders and experts including representatives of WhatsApp, Facebook, Google, Yahoo, Microsoft etc. submitted a comprehensive report to the court. Many proposals were made during the deliberations and all the parties agreed to certain recommendations based on the proposals made by the committee.

The Court proceeded to set out the proposals. Some of those proposals are:

• The search engines expand the list of keywords, which may possibly be used by a user to search for CP content.
• These keywords should also be in Indian languages and vernacular search.
• These keywords should be expanded to cover RGR content.
• Creating an administrative mechanism for reporting and maintenance of data in India
• Either within the CBI or under the aegis of the MHA, a cell must be set up to deal with these crimes
• A hash bank for RGR content be created (under the charge and control of Ministry of Home Affairs, GoI or through authorities or NGOs authorized by it)
• GoI to formulate specific parameters for identifying RGR content to ensure expeditious identification and removal
• A reporting mechanism must be created at a Central level, preferably with the CBI (in view of their role and special access) to also receive information of any CP/RGR content being circulated in the social media or any other platform over the internet;
• The solution lies in proactively identifying rogue sites by an independent agency which can identify sites that contains CP and RGR content and blocking these sites. To prevent the circulation of subject imagery, Government can block any additional sites/applications if they do not remove such contents of their own. MHA/designated LEA can be empowered to directly order Indian ISPs through DoT
• The Government, through an appropriate agency set up a VPN to receive the NCMEC reports for uploading of CP from India. As conveyed by NCMEC, there were more than one hundred thousand reports belonging to India. Law enforcement agencies should initiate legal action against uploaders.
• User Authentication: Create a mechanism where users who seek to upload an image/video, falling within the subject content, using the pre-identified keywords, are put to a more rigorous verification process which would have them believe that they would be traced

The Court further urged the Centre and all the concerned parties to implement the recommendations at the earliest and submit a report to the court.

“We expect the parties including the Government of India to abide by the recommendations on which there is consensus and to try and implement them at the earliest. We make it clear that any information that is based on or is pursuant to the proposals and recommendations to the Government of India will be kept confidential so as not to reveal the technology used by the participating service providers. The Government of India will prepare a status report on implementation of the recommendations and place it before us in a sealed cover before the next date of hearing”

The post SC takes suo moto action, urges Center to Implement Recommendations to Remove Child Porn and Rape Videos from the Internet appeared first on Legal Desire Media and Insights.

The matter was referred to the Delhi High Court Mediation and Conciliation Centre where both the parties had reached a settlement. However, the accused failed to comply with the terms of the agreement and contended that the settlement was not binding. The Metropolitan Magistrate Bharat Chugh thereafter referred the same matter to the Delhi High Court.

The question before the bench to adjudicate was; can a criminal court in any manner refer the parties before it to dispute resolution by mediation. The bench observed that although there is no statutory provision which explicitly provides that matters before a criminal court can be referred for mediation but the Code for Criminal Procedure does acknowledge settlement without stipulating or restricting the process by which it may be reached. Hence, there is no restriction for using the alternate dispute mechanisms including arbitration, mediation, and conciliation as recognised under Section 89 of CPC for the purposes of settling disputes which are the subject matter of offences covered under Section 320 of Cr.P.C. It was further added that it is legal to refer a criminal compoundable matter as given under Section 138 of the Negotiable Instruments Act for mediation.

The Court further went on to state that proceedings under Section 138 of the NI Act have a special character. They arise from a civil dispute relating to dishonouring to a cheque but can, in all possibility, result in a criminal consequence. The statute is punitive in nature, however, its spirit, intent and object are to provide compensation and ensure restitution as well, an aspect which must receive priority over punishment.

The Court also elucidated various judgments and concluded that there is no legal prohibition upon a court, seized of a complaint under NI Act, to entertain dispute resolution by recourse to the alternative dispute resolution methods including mediation.

If and when a settlement is reached, in cases, under Section 138, the court laid down the procedure, in such cases and observed that,
“Courts have had regard to the nature of proceedings, and, wherever found that criminal proceedings are really quasi-civil in nature, so far as matters of procedure is concerned, consistently expanded the limits of specific statutory prescription in order to do complete justice between the parties, keeping in mind the elements of public interest as well as the spirit, object and intendment of the legislation. Other than the settlement agreement, there is no judicial order of any court that binds the respondent to honour the settlement arrived at during mediation….The criminal courts necessarily have to keep the complaint pending, awaiting the implementation of the negotiated settlement. In the event of a breach of the settlement, the courts have to recommence proceedings on merits and the evidentiary/legal value of the mediated settlement remains undetermined. The courts cannot permit use of mediation as a tool to abuse judicial process.”

Regarding the breach of a settlement which has been accepted by the court, the Bench observed; “The party attempting to breach the settlement and undertaking cannot be permitted to avoid making the payment. In the event that a criminal court passes order accepting the mediated settlement between the parties and directs the accused to make payment in terms thereof, the settlement amount becomes payable under the order of the court. Such order having been passed in proceedings under Section 138 of the NI Act, would be an order under Section 147 of the NI Act and Section 320 of the Cr.P.C.”

At the end of the judgment, the Bench lucidly explicated the intricacies that are to be followed in cases under Section 138 wherein mediation and mutual settlement is involved.

The post ADR Mechanisms applicable in cases of dispute under Section 138: says Delhi HC appeared first on Legal Desire Media and Insights.

The court, in the present case, had to decide on the issues; whether a citizen, including a government officer, has a right to meet any person and the right of privacy to meet a person of his choice. A division bench comprising of Chief Justice Hemant Gupta and Justice Rajeev Kumar Dubey adjudicated the matter saying: “The meeting is said to have taken place in the office of RSS at Keshav Kutir. Meeting a Head of a Group does not show that such Government servant was canvassing or otherwise interfering or using his influence in connection with any election.”.

“There is no allegation that the Government servant has influenced any of his subordinates to vote in a particular manner. Therefore, it cannot be said that any Government servant has used his influence in connection with the election,” the court added, dismissing the PIL while further observing that; “we find the present public interest litigation filed by an Advocate, is a politically motivated petition in as much as the counsel for the petitioner was an agent of the Congress candidate”.

The court further said that the dispute in the present case is in respect of election of Mayor which is obviously a political issue and that the political issues are supposed to be settled through ballot not through a writ petition in the court, in obiter dicta.

The post A government servant has the right to visit any person of his choice: says MP HC appeared first on Legal Desire Media and Insights.

The Hon’ble court was hearing a petition filed under Section 482 of Cr.P.C for quashing a FIR under Sections 376(2) (rape by public servant), 323 (voluntarily causing hurt) and 506 (criminal intimidation) of the Indian Penal Code, by one Mr. Vikash Kumar, contrary to other observations, Mr. Kumar had submitted that the physical relationship between him and the appellant was totally consensual since inception more so he also contended that they had tied the knot in May this year. Submitting that the FIR was frivolous, and was the unfortunate outcome of a misunderstanding, he demanded it to be quashed.

Justice Pratibha Rani of the High Court at Delhi observed, in present matter, “In view of settled legal position enumerated in Gian Singh’s case, the criminal proceedings emanating from an FIR registered with allegations of rape, which is an offence against society, despite the alleged marriage of the petitioner with the complainant/respondent No.2, cannot be quashed in exercise of powers vested in this Court under Section 482 Cr.P.C.”

The question faced by the Court: “whether the mere fact that the parties have allegedly got married should be a reason good enough to quash the FIR registered under Sections 376(2) (N)/323/506 IPC and consequential proceedings emanating there from.”

On an appreciation of several precedents, Justice Rani answered this question in the negative and the petition was effectively dismissed.

The post Marriage with Victim won’t absolved rape charges against Accused rules Delhi HC appeared first on Legal Desire Media and Insights.

In the instant case, the trial court had heard and decided the suit, by an unregistered trust, while the HC at Rajasthan, allowing the appeal, dismissed the suit at the genesis, terming it ‘not maintainable’ in view of Section 29 of the Rajasthan Public Trust Act, according the provisions of the act, specified in Section 29, “No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided by any Court.”

A bench of the Supreme Court, comprising Justice RK Agrawal and Justice AM Sapre observed that the bar applies for “hearing and deciding” a suit, and not in filing the suit further more it was stated that a suit could be filed by the unregistered trust but it will neither be heard nor decide by the court unless and until the Trust is registered under the Act.

“Section 29, therefore, operates as stay of proceedings in the suit so long as the Trust does not get itself registered under the Act,” the bench observed, however, the moment the Trust is registered under the Act, the trial court can assume the jurisdiction to hear and decide the suit on the basis of merit and the bar created under Section 29 would then be then lifted and cease to apply to the proceedings in the suit, the court also remarked that the High court at Rajasthan should have stayed the proceedings by granting some reasonable time to the plaintiff to get the trust registered under the Act and only after such allowance of reasonable time, if the Trust had failed to obtain the registration certificate then in such eventuality, the first appellate court could have dismissed the suit.

The post Ban on ‘Hearing and Deciding’ a suit doesn’t mean it cannot be filed, pronounced SC appeared first on Legal Desire Media and Insights.