जन्मतिथि परिवर्तन

उच्चतम न्यायलय ने पंजाब हरयाणा हाई कोर्ट बनाम मेघराज गर्ग में दिनांक २० मई, २०१० को यह निर्णय दिया है कि नौकरी पाने के बाद यदि विद्यालय प्रमाण पत्र में जन्मतिथि संशोधित की जाती है तो सरकार या सम्बंधित विभाग उस संशोधित जन्मतिथि के अनुसार सेवा पुस्तिका में संशोधन करने के लिए बाध्य नहीं है।
इस मामले में एक न्यायिक अधिकारी ने नौकरी पाने के दस साल बाद विश्वविद्यालय के प्रमाण पत्र में अपनी जन्मतिथि बदलवाया था और राज्य सरकार तथा उच्च न्यायलय प्रशासन से यह अनुरोध किया था कि प्रमाणपत्र में संशोधित जन्मतिथि के अनुरूप उसकी सेवा पुस्तिका में भी जन्मतिथि संशोधित किया जाए ।
प्रार्थना पत्र अस्वीकार होने पर उसने दीवानी वाद प्रस्तुत किया जिसे अधीनस्थ न्यायलय तथा उच्च न्यायलय ने भी उसके पक्ष में डिक्री करते हुए सेवा पुस्तिका में जन्म तिथि संशोधित करने का आदेश पारित किया था। उच्चतम न्यायलय ने उच्च न्यायलय प्रशासन की अपील मंजूर करते हुए वाद को अस्वीकार एवं डिक्री को अपास्त कर दिया।

Compounding of offences u/s 138, NI Act

In CRIMINAL APPEAL NO. 963 OF 2010, Damodar S. Prabhu v. Sayed Babalal H., decided on 03/05/2010 , the Supreme Court observed that the interests of justice would indeed be better served if parties resorted to compounding as a method to resolve their disputes at an early stage instead of engaging in protracted litigation before several forums, thereby causing undue delay, expenditure and strain on part of the judicial system. This is clearly a situation that is causing some concern, since Section 147 of the Act does not prescribe as to what stage is appropriate for compounding the offence and whether the same can be done at the instance of the complainant or with the leave of the court.

With regard to the progression of litigation in cheque bouncing cases, the Attorney General requested to the Supreme Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, the Supreme Court directed the following guidelines to be followed:-

THE GUIDELINES

(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

The supreme Court further directed that :

(e) any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.

The Supreme Court agreed with the Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equate monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint file under Section 200 of the CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.

The court said that, “We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo,valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to subject-matter where there was a legislative vacuum.”

Revaluation of answerbooks

The Himachal Pradesh High Court had ordered production of the answer sheet and directed its re-evaluation and on that basis directed the Himachal Pradesh Public Service Commission to appoint the respondent, Mukesh Thakur, to the post of a Civil Judge (Junior Division). The HPPSC filed appeal before the Supreme Court against this order.

Allowing the appeal, the Bench said, “It is a matter of chance that the High Court was examining the answer sheets relating to law. Had it been other subjects like physics, chemistry and mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court.”

The Bench while setting aside the judgment of High Court, pointed out that there was no provision in the Rules for re-evaluation and since the respondent failed to secure the qualifying marks, he was not called for the interview.

Whether land can be aquired without notice !

“Section 9 of the act (Land Acquisition Act, 1894) provides for an opportunity to the ‘person-interested’ to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the act.”

“Therefore, scheme of the act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested,” said a vacation bench of the Supreme Court comprising Honorable Justice B S Chauhan and Justice Swatanter Kumar.

The court said: “The land vests in the state free from all encumbrances when possession is taken under Section 16 of the act. Once land is vested in the state, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 notice had not been served upon the person interested, he could still claim the compensation and ask for making the reference under Section 18 of the act. There is nothing in the act to show that non-compliance thereof will be fatal or visit any penalty.”

The court rejected the plea which had said that the provisions of Section 9 of the act was mandatory in nature and non-compliance thereof would vitiate the award and all other consequential proceedings.

Zeroing in on Section 9 of the act, the bench said, whether the provision is mandatory or directory, depends upon the intent of legislature and not upon the language for which the intent is clothed.

“The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid,” remarked Justice Chauhan writing the verdict for the bench.

It said, “failure of issuance of notice under Section 9(3) would not adversely affect the subsequent proceedings including the award and title of the government in the acquired land. So far as the person interested is concerned, he is entitled only to receive the compensation and therefore, there may be a large number of disputes regarding the apportionment of the compensation. In such an eventuality, he may approach the district collector to make a reference to the court under Section 30 of the act”.

Useful links for matrimonial litigants

http://savefamily.org/

http://www.498a.org/

http://ipc498a.files.wordpress.com/2008/04/a-guide-to-surviving-ipc-498a-apr-2008ci.pdf

Specific performance of unregistered sale deed

1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest inimmovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
6. A document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.

See,
1. CIVIL APPEAL NO. 3192 OF 2010 (SC), S. Kaladevi v. V.R. Somasundaram & Ors. (Decided o 12/04/2010)
2. K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564
3. Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy (1999) 7 SCC 114

घरेलू हिंसा - गिरफ्तारी से पहले समझौते का प्रयास आवश्यक

इलाहबाद उच्च न्यायालय के एक खंड पीठ ने दिनांक २६/०२/२०१० को एक व्यापक दिशा निर्देश जारी करते हुए पुलिस प्रशासन को यह निर्देश दिया है कि घरेलू हिंसा , दहेज़ उत्पीड़न , एवं अन्य साधारण वैवाहिक अपराधों में केवल प्राथमिकी दर्ज होने के आधार पर अभियुक्तों को पुलिस गिरफ्तार न करे। अपितु , विवाद को पहले न्यायलय के मध्यस्थता केंद्र या जहाँ मध्यस्थता केंद्र स्थापित नहीं हुए है, वहां पुलिस के मध्यस्थता प्रकोष्ठ में भेजे और मध्यस्थता के असफल होने तथा अपराध के गंभीर होने पर ही गिरफ्तारी करे।
उच्च न्यायालय ने यह भी निर्देश दिया है कि जिला मजिस्ट्रेट , वरिष्ठ पुलिस अधीक्षक तथा जिलाधिकारी के द्वारा मानिटरिंग सेल की मासिक बैठक में उक्त प्रकार के विवादों की नियमित समीक्षा की जाये। न्यायलय द्वारा दिए गए दिशा निर्देश के पूर्ण उद्धृत पाठ के लिए इससे ठीक पहले अंग्रेजी में लिखा गया पोस्ट (mediation in matrimonial offences) देखें ।