Weekend Legal Updates : 23rd October 2022

Today’s Legal Updates

Saturday & Sunday, 22nd & 23rd October 2022

Legal Awareness :- CONSTITUTION OF INDIA

Part – Vl THE STATES

CHAPTER- III  THE STATE LEGISLATURE

General

Article – 169 Abolition or creation of Legislative Councils in States

1. Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
2. Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.
3. No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

Weekend Legal Updates:-

1. The High Court of Jammu & Kashmir and Ladakh upheld the amendments to the Jammu and Kashmir Reservation Rules, 2005, by which 4 percent reservation was provided to ‘Pahari Speaking People’ in respect of each service, class, category and grade in services and posts under the Union Territory. (Mohammad Anwar Chowdhary and others V/s UT of Jammu and Kashmir and others)
   • the Court said, The petitioners have not, at all, disclosed as to how they are aggrieved of the impugned Statutory Order and they have not stated as to which of their legal rights have been affected by the impugned action of the respondents. The petitioners, therefore, do not qualify as “aggrieved persons” who can maintain a writ of certiorari or a writ of mandamus against the respondents. …They have not even averred in the petition that they are filing the petition in public interest. Therefore, the instant petition cannot even be treated as a public interest petition.
   • the Court said in its judgment, The Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that legal injury is threatened and the affected class of persons is unable to approach the Court on account of their poverty etc even in cases filed in public interest.
2. Two courts have taken contradictory views as regards the evidentiary weight of statements made by dismissed cop Sachin Waze with regard to the corruption and money laundering cases against Nationalist Congress Party (NCP) leader Anil Deshmukh.
   • the judge observed, The statements which are referred above cannot be overlooked at this stage and facts discussed and disclosed by makers of those statements cannot be easily brushed off at the stage of hearing on bail application. Question of admissibility of such evidence would be a matter of trial. The sufficiency or insufficiency of evidence cannot be the basis to answer the prayer for grant of bail.
   • the High Court recorded, These statements ex-facie cannot bear weight of the allegation of generation of proceeds of crime out of the alleged predicate offence of exercise of influence over the transfers and postings of the police officials. These statements ex-facie lack the element of certainty as to the source, time and place. They prima facie appears to be hear-say.
3. Last Week the Supreme Court upheld the bail by Jammu and Kashmir High Court granted to Peoples Democratic Party (PDP) leader Waheed Ur RehmanParra (Waheed Parra) in a case under the Unlawful Activities Prevention Act (UAPA).  (Union Territory of J&K v. Waheed Ur Rehman Parra)
   • the order said, We would not like to interfere with the aspect of the grant of bail but we are certainly not giving our imprimatur to any of the observations coming in the impugned order as regards the interpretation of the UAPA Act.
   • The Jammu Kashmir High Court had, on May 25, granted bail to Parra, who was detained by NIA in connection with a terror case. Parra has been accused of establishing clandestine connections with terrorists and secessionist organisations which are operating in J&K.
   • He was detained by the Criminal Investigation Department (Kashmir) for commission of offences under Sections 13, 17, 18, 39, 40 of UAPA and Sections 124-A, 120-B, 121, 121-A of Indian Penal Code.
4. A Supreme Court bench led by Chief Justice of India (CJI) UU Lalit held a special hearing on Saturday to hear cases related to the Amrapali home buyers and the bail applications filed by its promoters.
   • the order said, The interim relief granted to the petitioner shall continue to operate till eight weeks. Let the Operation upon the ‘Left Eye’ of the petitioner be conducted as per the medical advise, as early as possible. The petitioner shall be entitled to have the Operation conducted at Sankara Nehtralaya, if so advised.
   • the Court directed, Since the medical condition of the daughter of the petitioner has improved, the protection by way of interim bail granted to the petitioner is withdrawn. The petitioner shall surrender before the Court [i.e. the Court of the Chief Metropolitan Magistrate (East), Karkardooma District Courts, Delhi] which had accepted bailbonds pursuant to the order of interim bail granted by this Court, on or before November 7, 2022 and he shall be taken in custody immediately.
   • the order stated, The petitioner may, if advised, take up the challenge insofar as rejection of bail application in the matter concerning offence under the Act is concerned, at the appropriate level.
5. The Bombay High Court observed that an Investigating Officer (IO) is duty-bound to subject an accused to a psychiatric assessment immediately upon arrest if there is any doubt about his sanity.  (Ajay Ram Pandit v. The State of Maharashtra)
   • the Court stated, once PW-7 – IO became aware of the fact after apprehending the appellant that he was mentally retarded, it was his lawful duty to subject the appellant to medical examination and place the evidence of such medical examination before the trial court.
   • the Court stated, Conjoint reading of the depositions and admissions given in the cross-examination by the aforesaid three witnesses reveal an important facet in the present case i.e. the fact of insanity of appellant. That the police officer who first reached the spot of incident and apprehended the Appellant and brought him to the police station had specific knowledge that he was having mental issues.
   • However it needs to be noted that the date of incident is 03.09.2011 whereas the date of the psychiatric report is 21.11.2014 i.e. more than 3 years after the date of incident.
6. On Friday the Securities and Exchange Board of India (SEBI) barred textile producer Bombay Dyeing and its promoters Nusli Wadia, Ness Wadia and Jehangir Wadia from accessing security market for two years for misrepresentation of financial statements of the company.
   • the order said, Rather the show cause notice (SCN) has a larger case that because of the deliberate design to directly hold 19% in the share capital of Scal and de facto entire share capital of Scal, Bombay Dyeing was able to eschew from the compliance of consolidation of financial statements, thereby being able to hatch a grand scheme of fraudulent misrepresentation of financial statements for inflating the sales and profits of Bombay Dyeing.
   • The SEBI also imposed a penalty of ₹2.25 crores on Bombay Dyeing, ₹ 4 crores on Nusli Wadia, ₹2 crores on Ness Wadia, ₹ 4 crores on Jehangir Wadia and ₹50 lakh on Mehta.
   • The SEBI also imposed a penalty of ₹2.25 crores on Bombay Dyeing, ₹ 4 crores on Nusli Wadia, ₹2 crores on Ness Wadia, ₹ 4 crores on Jehangir Wadia and ₹50 lakh on Mehta.
   • The SEBI, therefore, ruled Scal ought to have been recognized as ‘an associate’ of BDMCL for the purpose of Indian Accounting Standards 28, as well, and consequently the financial statements of Bombay Dyeing ought to have been prepared and disclosed as per stipulations in AS-23 and IndAS 28.
7. On Friday the Indore bench of the Madhya Pradesh High Court reduced the life sentence of a rape convict to 20 years’ rigorous imprisonment considering the fact that he was kind enough to leave the survivor alive without taking her life. (Ramu v State of MP)
   • Considering the demonic act of the appellant who appears to have no respect for the dignity of a woman and has the propensity to commit sexual offence even with a girl child aged 4 years, this Court does not find it to be a fit case where the sentence can be reduced to the sentence already undergone by him.
   • the Court said, Considering the fact that he was kind enough to leave the prosecutrix alive, this court is of the opinion that the life imprisonment can be reduced to 20 years’ rigorous imprisonment.
   • A case was registered against the appellant for rape under the Indian Penal Code read with Section 3(1)12 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
8. A public interest litigation (PIL) against the ongoing Enforcement Directorate (ED) probe into the financial transactions of the Kerala Infrastructure Investment Fund Board (KIIFB), was withdrawn by the five petitioners who are all members of the Kerala Legislative Assembly a. (KK Shailaja & Ors. v Union of India & Ors.)
   • On August 11, Communist Party of India (Marxist) MLAs KK Shailaja, IB Satheesh and M Mukesh, Communist Party of India MLA E Chandrasekharan and Congress (Secular) MLA Ramachandran Kadannappally, had approached the Kerala High Court with the PIL.
   • The PIL primarily contended that the ED had been issuing repeated summons to several officials of the KIIFB in an effort to tarnish its goodwill which would in turn, affect the development of infrastructure in the State.
   • It stated that the KIIFB had approved a total number of 993 projects throughout the State of Kerala and the total value of the approved projects was ₹53,869.44 crores.
   • The PIL primarily contended that the ED had been issuing repeated summons to several officials of the KIIFB in an effort to tarnish its goodwill which would in turn, affect the development of infrastructure in the State.
   • It stated that the KIIFB had approved a total number of 993 projects throughout the State of Kerala and the total value of the approved projects was ₹53,869.44 crores.
   • The plea also sought orders to set up a mechanism to solve disputes between the Central and State Governments and their respective statutory agencies.
9. On Friday the Nagpur bench of the Bombay High Court ordered authorities to impose a fine of not more than ₹200 on citizens who feed them on roads and in public places.  (Vijay Shankarrao Talewar vs State of Maharashtra)
   • the bench observed, These citizens posing themselves as sympathizers and friends of stray dogs offer food packets and different titbits to stray dogs unmindful of the great harm that they are doing to the society. These supposed friends of stray dogs do not realise the disastrous consequences of their charity. Fed on the goodies provided by the animal lover, many of the stray dogs become insolent and get even more violent in their behaviour towards human beings in general and children in particular.
   • the Court said, They must understand that real charity lies in taking the complete care and not just feeding and then leaving poor creatures to fend for themselves. This is the most basic duty a benevolent must perform if he has real compassion for stray dogs. But the so called friends of stray dogs shy away from performing this basic duty of theirs and the result is of uncontrolled growth in population and nuisance of stray dogs.
   • the bench ordered, We further direct that if any person is interested in feeding stray dogs, he shall first adopt the stray dog/bitch, bring it to home, register it with Municipal Authorities or put it in some dogs shelter home and then shower his love and affection on it, may feed it while taking it’s personal care in all respect. The Nagpur Municipal Corporation to impose appropriate penalty for any breach of these directions, which penalty may not be more than of Rs.200/- for every breach.
   • the bench ordered, The action that may be taken under Section 44 of the Maharashtra Police Act, we add, may not be of the extreme nature of destruction of the stray dog but, it can be at least in the nature of detention of the stray dog as per the procedure prescribed and then handing over the stray dog to the Monitoring Committee setup for their appropriate placement/ disposal.
   • the bench observed, This is not to say that there is something wrong about the view that dog generally is the best friend of man but, this has to be taken with circumspection when it comes to dogs which are strays and are not kept as pets. Many of these strays are aggressive, ferociously wild and simply uncontrollable in their behaviour.
10. On Friday the Karnataka High Court quashed a criminal complaint registered against two Congress office bearers for damaging public property by instructing three persons to paste posters relating to the “PayCM” campaign in Nelamangala town. (Narayana Gowda and ors v. State of Karnataka)
    • the Court explained, Mischief would mean whoever intends to cause wrongful loss or damage to the public or to any person or causes destruction of the property would be guilty of mischief…If they have not done any act that would become offence under the provisions of the Prevention of Damage to Public Property Act.
    • the order stated, For the aforesaid reasons, I deem it appropriate to terminate the proceedings against the petitioners.
    • What was in the FIR?
      • According to the complaint filed by assistant sub-inspector KR Narayan Rao, the pasting of these posters, which read, “Scan this QR code to expose government’s corruption,” amounted to defacing and vandalizing of public property.
      • On the basis of this complaint, the applicants were charged for the offence of creating mischief by causing damage to public property.
11. On Friday the Patna High Court struck down certain provisions of the Bihar Municipal (Amendment) Act of 2021 on the ground that hinder self-governance sought be achieved through the 74th Constitutional Amendment.  (Dr Ashish Kumar Sinha & Ors. vs The Union of India)
    • the Court stated, With respect to laws made for local self-government, the four key words that form the essence of the Seventy Fourth Constitutional Amendment, as also the Municipal Act, i.e decentralization, devolution of powers, autonomy and accountability must always be respected.
    • the Court ruled, The purpose, therefore, of the 74th Amendment of the Constitution of India under which falls Article 243W of the Constitution of India and as a result of which the Bihar Municipal Act, 2007 was enacted was to bring to the local political institutions already existing, autonomy, the power to self govern through devolution of power and independence in regards to certain functions…..Therefore, any law making undertaken by the State with respect to municipalities has to be for the purposes of fostering self government.
    • it observed, There is no question as to the supervisory power of the State and to the law making authority it possesses. However, in pursuance of the same, it is essential to strike a balance, maintaining the autonomy of the third level of Government. The amendments strike at the heart of the search for this balance.
    • the Court added, The control exercised by the Municipal authority in matters concerning its employees is not complete/unbridled or entirely autonomous, however, there is considerable freedom guaranteed by virtue of such authority being a quasi-autonomous body which must be respected in line with horizontal separation of powers under the constitution.
    • the Court observed, the impugned amendments…are contrary to the Seventy Fourth Constitutional Amendment as both the major effects, i.e. the recentralization of power and institution of self-government being weakened as being dependent on the State Government for regulation of its employees, are incompatible with the idea, intent and design of the constitutional amendment and are manifestly arbitrary.
12. on Thursday the Supreme Court sought the response of NGO Common Cause on a plea by Central government seeking modification of the top court’s September 2021 judgment which had barred grant of further extension to Director of Enforcement Directorate (ED).
    • he Court said, Issue notice, returnable on 07.11.2022. Mr. Prashant Bhushan, learned counsel appearing for the respondent waives and accepts notice.
    • the Court had saippd Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases.
    • Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25 (a) of the Central Vigilance Commission Act, the Court had further ruled.
13. On Thursday the  Supreme Court sought the response of NGO Common Cause on a plea by Central government seeking modification of the top court’s September 2021 judgment which had barred grant of further extension to Director of Enforcement Directorate (ED).m
    •  the Court said, Issue notice, returnable on 07.11.2022. Mr. Prashant Bhushan, learned counsel appearing for the respondent waives and accepts notice.
    • the Court had said, Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases.

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