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COVER STORY :A DESIREDLEGAL SYSTEM

A fortnightly Magazine for Justice, Law and Activism

Mission Justice

For a long time I and my office were filing a lot of RTIApplications. We gotlot of data, which clearly showed that there are lots of things which arewrong. But our subjects were not sensational. Our intention was not andnever is to target any person, but to ensure that we get things done the rightway. So no media person was interested in taking up the issues. I did getassociated with one Magazine, but was not satisfied.

Ultimately, my father said that he is starting a Magazine and I can continue

to do my work. Then we decided to launch it on 6 September as the same ismy daughter's birthday. We all miss her.

This Magazine intends to give Court news, experiences with Truth, Citizenscharter, RTI section, quotes etc. This suits well for informed citizens,Judges, Lawyers and activists. My father said he will apply for RNI for printcopy, but till then an emagazine is the best option.

Initially it is free. All feedbacks can be sent to us and we shall be greatful forthe same. Articles, issues, RTI data and all kinds of activism are welcomedand we will try our level best to cover every fact and Truth. Since profit is nota motive, there is no commercial pressure and hence truth can be put up toyou, as it is. But then there may be some weakness in our presentation as wewill not be true professional like others. The first issue covers my dream ideaof future litigation and I have made it public. I am waiting for the feedback.

th

Siddharth Morarka

Penned by the EditorThis Magazine is owned by :

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Rajkumar Murarka

Siddharth Murarka

Advocate High Court

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This Magazine is beingpublished with great care.However, in case of any errorthe same may be informed tothe Legal Editor, who willmake necessary rectification.The Magazine is publishedfrom Mumbai and onlyCourts at Mumbai will havejurisdiction over mattersrelating to this Magazine.

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1. Appearance before CESTAT –

2. Cast claim –

3. Departmental Enquiry –

4. Doctrine of Double Jeopardy –

5. Election of municipal body –

6. Service law

7. Co- operative Society –

8. Dishonour of cheque –

Section 129(6) of Customs Act stipulates that on demitting

office as Member of CESTAT a person shall not be entitled to appear before the CESTAT –

Restriction imposed cannot be said tobe unreasonable or ultra virus (2012(7) LJSOFT (SC) 97).

Verification – Purpose of – Person entitled for his caste – claim to be determined and

verified in accordance with law irrespective of the immediate motive for the verification (2012 (7)

LJSOFT (AUR) 128).

Distance between college and place of enquiry is nearly 190 – 200

kms – ThoughAppellants were entitled to the payment of TA/ DAas per rules the same was not paid

to them promptly – Fair opportunity cannot be said to be given to theAppellants (2012 (7) LJSOFT

(NAG) 157).

Test to ascertain whether the two offences are the same is not

identity of the allegations but the identity of the ingredients of the offence (2012 (7) LJSOFT (SC)

70).

Recognition of aghadis – Second proviso to sub-section (2) of

Section 31A enables the formation of a Aghadi or front within a period of one month from the date

of notification of the election results – Recognition of variations in the relative strength of the

political parties beyond the above mentioned period of one month not permissible (2012 (7)

LJSOFT (SC) 144).

– Absence from duty without any application or prior permission may amount to

unauthorized absence but it does not always mean willful – Disciplinary acuthority required to

prove that the absence is willful (2012 (7) LJSOFT (SC) 129).

Nomination of persons – Death of member – Nominee has no legal right

– Nomination in the record of society does not create any interest in the nominee to the exclusion of

those who would be entitled to the estate in accordance with law and succession (2012 (7) LJSOFT

30).

Complaint filed against the authorised signatory of the company –

Company was not arrayed as an accused – Director or any other officer cannot be prosecuted

without impleadment of the company – Proceedings initiated u/s. 138 of N. I.Act are quashed (2012

(7) LJSOFT (SC) 14).

Latest Judgments

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9. Election Petition –

10. Execution proceedings –

11. Registration of Trust –

12. Right of speedy trial

Rejection of nomination paper – There cannot be any disqualification u/s.

14(1)(h) for not paying any sum other than the tax or fee due and recoverable by Panchayat. (2012

(7) LJSOFT (NAG) 70).

Right to obstruct – Rule 102 has been deleted on 05.09.1983 as per

the BombayAmendment – Right of theAppellants was virtually nullified by applying the said Rule

102 which is non existent (2012 (7) LJSOFT 99).

Deed of settlement – Husband of applicant was appointed as executor

of will –After his death his status as a Executor had come an end – Since rights of Executor were not

inheritable the legal heir of an executor would not get them – Wife of Executor had no right to

execute the Deed ( 2012 (7) LJSOFT 130).

– Illegal gratification – Gross delay in filing of charge sheet even against

the main accused – Act on the part of Investigating Officer was malafide and was acting with a bias

– His acts was an act of persecution rather than prosecution – Circumstances enough to draw

conclusion that the prosecution denied the petitioners their right of speedy trial – Proceeding

quashed (2012 (7) LJSOFT 93).

Latest Judgments

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INTERNATIONAL COURT NEWS

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APPLE PATENT CASE : SAMSUNG GALAXY NEXUS BANNED IN USA

In a big blow to Samsung a US Court on 24.8.2012 passedorders granting Apple's request for a pre-trial injunctionagainst the sale of Samsung Electronics Galaxy NexusPhone. This is a second blow to Samsung from Apple inless than a week. These Electronic giants are waging legalwar in several countries, accusing each other of patentviolations as they fight for supremacy in a fast-growingmarket for mobile devices. It is like a world war betweentwo electronic giants. The decision of US District JudgeLucy Koh in San Jose,Califfornia , comes days after shealso slapped a pre-trial ban on sales of Samsung's GalaxyTab 10.1, a tablet computer that runs on Google'sAndroidand goes toe-to-toe with the iPad.

As a condition of the injunction, Apple was ordered to post a bond of more than $95 million, tosecure payment of damages sustained by Samsung should the injunction be deemed a wrongfuldecision later. The order shall become effective upon posting of the bond.

In a opposite judgment a Tokyo court has ruled that did not infringe on anApple . Thisis a new twist in the legal world war between the two technology titans. The Tokyo District Courtruled on Friday that the technology used in the South Korean company's smartphones and tablet tosynchronise with computers did not infringe on anApple patent.

SAMSUNG DID NOT IMFRINGEAPPLE PATENT RULES TOKYO COURT

Samsung patent

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NEWS EXPRESSING VIEWS

JUSTICE ONLY IN SPEECHES AS ALWAYS : PRIME MINISTER PROMISES JUSTICEEVEN AS THE COUNTRY REELS UNDER THE BURDEN OF LACK OF JUSTICE

Speaking at the 150th anniversary celebrations of theBombay High Court Prime Minister Manmohan Singhon 18.8.2012 stressed on the need to deliver timelyJustice and said the UPA government was committed toworking with the judiciary to bring about improvementsin the country's justice delivery system. Dr. Singh notedthat a number of initiatives and reforms had been takes /introduced for this purpose and cited the NationalMission for Justice Delivery and Legal Reforms that waslaunched last year to achieve the twin objective ofincreasing access by reducing delays and arrears andenhancing accountability.

Claiming all credits, Dr. Singh said a ConstitutionAmendment Bill on raising the retirement age of HighCourt judges was before Parliament, while acomprehensive proposal had been formulated for theestablishment of an All India Judicial Service. An inter-ministerial group was examining the requiredamendments in the Negotiable Instrument Act along with other measures, to check the increasinglitigation arising out of cases of cheque-bouncing, he said. He further noted that a group under theChairman of Law Commission was looking at improvements required in court procedure andprocesses to ensure a better criminal justice system.

Dr. Singh said that it was heartening that the number of pending cases had declined by more than 6lakh between July and December 2011. “The Bombay High Court and its subordinate courts havecontributed handsomely to this achievement, reducing their pendency by 5 lakh cases annuallysince 2010,” Dr. Singh noted.

Speaking on the glorious tradition of the Bombay High Court in enriching the Indian legal system,the Prime Minister said it was “remarkable” that the first Chief Justice, the Attorney General andSolicitor General of Independent India were from this court. “It is even more remarkable that thesethree significant positions continued to be occupied by the products of this Bar [the Bombay HighCourt] even today,” he remarked. Since 1947, 22 judges from the Bombay High Court have beenelevated to the apex court and as many as eight of them have adorned the office of Chief Justice ofIndia.

Prime Minister Manmohan Singh

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NEWS EXPRESSING VIEWS

CJI TRAVELS TO AURANGABAD JOINED BY OTHER JUDGES OF BOMBAY HC FORA LECTURE TO BE DILEVERED ON CONSTITUTIONAL ETHICS

Chief Justice of India expressed theview while delivering a lecture on Constitutionalethics, organised jointly by the

(Bamu) and V R SavantMemorial Trust. He said that was theviolation of and that concertedand systematic efforts were needed to tackle theissue. Kapadia underlined the need to introducethe study of the Constitution as a subject in schoolsand said that everyone should read and follow theConstitution. Like an economist he said that thetendency to expect everything from thegovernment was a wrong approach. Repeating thedata of taxation and emphasing more on taxationhe said that only 3% people pay personal incometax. Of these, 2% are salaried employees anedhence according to him we must also speak of ourduties while talking about our rights. He saidmany people were unaware of their rights andduties. Both these things have to go together, hesaid.

Kapadia said he has to consult the Constitution each day at the Supreme Court. "The more I read it,the belief in it and the respect towards its architect B RAmbedkar is strengthened. I owe my growthand the present position as the Chief Justice of India to the Constitution," he said. Repeating his tuneon his minority status he said that "I belong to a minuscule minority and I firmly believe that in noother country than India would I have expected to become the chief justice. It happens only inIndia," he said.

Bombay High Court Chief Justice Shah, who presided over the function, said that the Constitutionwas not merely a legal document, but a living document. He urged judges to be fearless whiledelivering judgments. Fear of failure holds the keeper of public offices from taking decisions, hesaid. He also agreed with the suggestions that judges should deliver lectures for law students.

Justice Sharad Bobade, Justice (retd) Arvind Savant, vice-chancellor Vijay Pandharipande, schooleducation minister Rajendra Darda, minister of Rajesh Tope, Bamu registrarDhanraj Mane and lawyer Pankaj Savant were also present on the occasion.

S H Kapadia

Babasaheb Ambedkar

Marathwada University

poverty

basic human rights

higher education

Chief Justice of India S. H. Kapadia

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YEARS LATER INDIAN SC OVERRULES ITS EARLIER VERDICT ANDNOW COURTS CANT PASS INTERIM ORERS IN ARBITRATION AWARDS

Laws need not be changed by Parliament itself. Thatis what has happened now with anotherinterpretation of Law by SC. The Apex Courts five-judge Constitution Bench, comprising Chief JusticeS. H. Kapadia and Justices D. K. Jain, S. S. Nijjar,Ms. Ranjana Desai and J. S. Khehar, while disposingof a batch of appeals said, “if the arbitrationagreement is found or held to provide for a seat/placeof arbitration outside India, then the provision thatthe Arbitration Act, 1996, would govern thearbitration proceedings would not make Part I(relating to domestic arbitration) of the ArbitrationAct, 1996, applicable or enable Indian courts toexercise supervisory jurisdiction over the arbitrationor the award.” Writing the judgment for the Bench,Mr. Justice Nijjar said, “We are of the consideredopinion that Part I of the Arbitration Act, 1996,would have no application to InternationalCommercial Arbitration held outside India.Therefore, such awards would only be subject to thejurisdiction of the Indian courts when the same aresought to be enforced in India in accordance with theprovisions contained in Part II of the Arbitration Act, 1996.” The Bench said “It would only meanthat the parties have contractually imported from the Arbitration Act, 1996, those provisions whichare concerned with the internal conduct of their arbitration, and which are not inconsistent with themandatory provisions of the English Procedural Law/Curial Law. This necessarily follows from thefact that Part I applies only to arbitrations having their seat/place in India.”

The Bench said “the regulation of conduct of arbitration and challenge to an award would have to bedone by the courts of the country in which the arbitration is being conducted. Such a court is then thesupervisory court possessed of the power to annul the award. This is in keeping with the scheme ofthe international instruments such as the Geneva Convention and the New York Convention as wellas the United Nations Commission on International Trade Law (UNCITRAL). It also recognisesthe territorial principle which gives effect to the sovereign right of a country to regulate, through itsnational courts, an adjudicatory duty being performed in its own country.”

The Bench said “Difficulties were also being faced in the International Sphere of Trade andCommerce. With the growth of International Trade and Commerce, there was an increase indisputes arising out of such transactions being adjudicated through Arbitration. One of the

(contd..)

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COURT NEWS

only to all the arbitrations which take place within the territory of India. Thus, in order to docomplete justice, we hereby order that the law now declared by this Court shall apply prospectivelyto all the arbitration agreements executed hereafter.”

A decade ago, in the Bharatiya International case, the Supreme Court, had held that Part I of theArbitration Act, dealing with the power of a court to grant interim relief, could be applied toarbitration disputes with a foreign seat, unless the parties specifically opted out of such anarrangement.As a result, various High Courts had been forced to entertain appeals and were passinginterim orders against such awards. The sufferings on account of wrong interpretation at the ApexCourt made many suffer.

KASAB : ANOTHER FILE TO BE ADDED IN MERCY PETITIONS

Even as Afzal Guru Petition is undecided by the President,another file is likely to be added to the list. This time it is of theman, who may be poor in Pakistan, but is one of the costliestcriminals who is eating into taxpayers money on account ofexpenses on him and his security.

The Supreme Court recently upheld the death sentence of AjmalKasab, the only surviving Pakistani terrorist behind the 26/11Mumbai strike that claimed 166 lives. "We are constrained to holdthat the death penalty is the only sentence that can be given in thecircumstances of the case," the apex court bench of JusticesAftabAlam and C.K. Prasad said. Kasab, one of the 10 Pakistanis whosneaked into Mumbai on the night of Nov 26, 2008 for a terrorsiege of the city that ended on Nov 29 afternoon, had moved theapex court challenging the death sentence by a trial court, whichwas later upheld by the Bombay High Court. The court rejectedKasab's contention that the Mumbai terror attack was a waragainst the government of India and not against the Indian state orits people. Having said this, the court added: "Primary and foremost offence by the accused (Kasab)was waging war against India."

The high court had upheld Kasab's death penalty Feb 21, 2011.Kasab was sent to the gallows by aMumbai trial court May 6, 2010. Besides other charges, he was convicted for waging war againstthe Nation.

Kasab

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STATE NEGLIGENCE IN GOVERNANCE BY IGNORINGHUMAN RIGHTS PANEL IRKS HC

State Human Rights Commission (SHRC) is dysfunctional because of lack of infrastructure by thestate Government. Irked by the attitude of the state the SHRC chairperson, former high court ChiefJustice Kshitij Vyas had resigned in February. Two members' postsalso became vacant after Justice (retired) V G Munshi and T SSingaravel retired. However the Government does not want HumanRigh t s implemen ted and Corruption curbed. It has moneyfor advertisement to please its leaders but has not filled the vacantpositions. The "headless" Maharashtra SHRC has now comeunder the scanner of the Bombay high court. A PIL pointing out thatthe SHRC has been functioning without a chairperson and twomembers for months has been filed and the high court has issued a notice to the state government torespond.

The Petitioner pointed out that over 4,000 cases are pending, many featuring complaints againstpolice authorities. Thus, by making it non functional the victims of the Government police andsystem are left at the mercy of God and are being put to such frustration that Justice will be dead intheir heart.

HC PANEL LISTS 17 STEPS TO SOLVE TRAFFIC WOES

While hearing a public interest litigation filed by the BombayBar Association on traffic indiscipline in the city, a divisionbench of Chief Justice Mohit Shah and Justice Nitin Jamdargave the state two months to spell out the action it plans to takeon the recommendations. "Traffic awareness programmesshould not remain restricted only to south Mumbai," said thebench. The PIL was filed, seeking stricter implementation oftraffic rules, monitoring of vehicles by CCTV cameras and theuse of helicopters to survey vehicular movement.

The HC appointed the high-power committee, which is headed by the additional chief secretary(home) and has as members the transport commissioner, BEST general manager, senior officers ofthe transport department, and MMRDAand the joint commissioner of traffic police.Assistantgovernment pleader J S Saluja submitted the report of the panel, which has come up with 17measures, which the members hope would improve the scene on the city roads.

Tougher rules for driving licences, obstruction-free roads and pavements, cleaner subways, morepower to traffic constables are among the 17 points identified by a committee appointed by theBombay high court to improve the condition on the roads of the city.

BMC

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MISSION JUSTICE VIEWS :

The difficulty in Mumbai is that there is just one target. That is to serve the elite class and politians.The Police force evolves around such people and common man is ignored. The barricades are leftwherever they want even if it cause nuisance. The zebra crossing has a divider in between, walkinglights missing and cars are crossing zebra and then only come to a hault.All this in front of the policeconstable who damn cares. This is what I see daily at Goregaon Fly over and the Police is just adummy sitting there. The right to walk is violated as there is no foot path and if you see marine linestation the bunkers are put up for contractors of BMC on footpath. The only way out is to have areporting of each road online to public and public hearing be given for each area about roads.

TAXPAYERS CAN'T BE FINED FOR INCORRECT CLAIM IF ALL RELEVANTINFORMATION IS PROVIDED

In a relief to the taxpayers against the Income Taxdepartment which treats tax payers as slaves, The BombayHigh Court division bench comprising Justice SJ Vazifdarand Justice MS Sanklecha in an appeal filed by the I-Tdepartment against Aditya Birla Nova ruled that thedepartment cannot levy penalty on a taxpayer, if he makes anincorrect claim but furnishes all relevant particulars ofincome. The division bench held the view that, "to attract theprovisions of Section 271, the assessee must be held to haveconcealed the material particulars or to have furnishedinaccurate particulars. At the cost of repetition in the case,there was no concealment of any material particulars by therespondent (the company)".

The department had rejected the claim of the taxpayer company of a deduction of over Rs 11 lakhon the ground that it is not an industrial undertaking. The I-T department also disallowed adeduction of over Rs 9 lakh claimed due to reduction in the value of shares. This was disallowed onthe ground that the shares were held as an investment. Therefore, profits and losses on the sale ofshares would be considered under the head "capital gains" and initiated penalty proceedings underthe provisions of the income tax Act for claiming deduction wrongly. The department claimed thatthough the company has furnished all particulars of income correctly and no false statement hasbeen made in the return, it has made a false claim of deduction despite the fact that it was not entitledfor deduction under the relevant rules. The department cited the Section 271 (1) (c) of income taxwhich treats as concealment of income when a taxpayer offers an explanation which he cannotsubstantiate.

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PIL SEEKING DIRECTIONS TO AUTHORITIES TO INSTALL CAMERASTO RECORD THE PROCESS OF INVESTIGATION IN ORDER TO CURBINCIDENTS OF CUSTODIAL TORTURE

The Gujarat High court reserved its order on a PIL seeking directionsto authorities to install cameras to record the process of investigationin order to curb incidents of .After reports that the crimebranch police inspector Paresh Solanki was allegedly beating upbusinessmen last month in police station, an NGO filed the pleaseeking certain directions to the authorities to restrain cops fromexerting undue pressure and torture during questioning.

It was contended that many times the cops convert civil disputes intocriminal complaint and in the present case of beating thebusinessmen; the cop had actually assumed the task of extortionist.That installation of cameras to record the process of custodialinterrogation and investigation in police stations and lock ups may be a good preventive measure.This move could control misbehaviour on part of police officials, which is often alleged. Infactrecently installed camera in all police stations for transparency and betteradministration. The lawyer stated that the same model could be replicated inAhmedabad also.Afterhearing the case, the high court reserved its order on the issue.

custodial torture

Rajkot police

BOMBAY HC FUMES AS ILLEGAL CEMENT UNIT OPERATES NEXT TOMALAD SOCIETY

Without considering the harmful effect on the health of theresidents in near by society, the Brihanmumbai MunicipalCorporation permitted a ready-mix cement plant to operatenext to a residential complex in Malad (East). A divisionbench of Chief Justice Mohit Shah and Justice Nitin Jamdarwhile hearing a public interest litigation filed by ValentineApartment- 1 Cooperative Housing Society at Pimplipadawas shocked to hear the reality and rapped up the BMC andalso issued notice to Maharashtra Pollution Control Boardwhich granted the unit permission to operate for ten years.What was shocking was the fact that despite BMCacknowledging that the plant is illegal, it has taken no steps to shut it down. It is also in a nodevelopment zone which forbids any activity including allowing a hazardous industry. BMCadvocate Sharmila Modle replied that action was taken against the factory under Section 390 of theBMC Act which prescribes that no factory can be set up without the permission of the municipalcommissioner. The judges quizzed the BMC as if BMC had indeed taken action then how could thefactory continue its operations in violation. The petition said since the plant commenced

Illegal Cement Unit

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expanded. The petition said Maharashtra Pollution Control Board inAugust 2005 granted the plantpermission for ten years to operate till 2015 and urged the court to stay it pending hearing anddisposal of the PIL. Since MPCB was not represented, the judges directed issue of notice to it. Thematter is adjourned to September 27, 2012.

Why just fume at BMC? The fact that complaints were not heard by authorities point out the lack ofaction against wrong and violation of duty towards the common man. All this must also be kept inmind and the concerned must be made accountable as fixing responsibility will deter the repeat ofthe action.


NO SALE OF PLASTER OF PARIS IDOLS TILL FURTHER ORDERS: HC

In a blow to those who use Plastic of Paris idols in Ganpati,The Nagpur Bench of Bombay High Court comprisingjustice Vasanti Naik and justice SP Deshmukh directed theNagpur Municipal Corporation (NMC) to seize the Plasterof Paris (PoP) idols entering the city at the Octroi post itself.However, providing respite to the local idol-makers andthose who have already brought PoP idols to the city, adivision bench refrained NMC from touching them.

The court was hearing a petition (WP No. 4172/2012) byVinod Gupta and nine others who claimed to be in idol-making business since over a decade. The division benchasked the civic body to file reply before September 10 onpetitioners' contentions. NMC was directed to keep theseized idols in safe custody, preferably in its warehouses.The judges also told the petitioners not to PoP idols tillfurther orders. It was contended that before imposing theban onAugust 30 in its general body meeting, the civic bodydid not conduct any scientific study on whether PoP pollutes or damages water bodies. Heclaimed that there is no scientific data that shows PoP affects aquatic life or kills fish or chokessources of water bodies. Moreover, there is no such law in the country which prohibits artisansfrom using PoPin idols.

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UNLESS THERE IS A FINAL AGREEMENT A BUILDER CAN'T FORCEREDEVELOPMENT RULES BOMBAY HC

Hearing an application filed by builder Gopi Gorwani, a divisionbench of Bombay High Court consisting of Chief Justice MohitShah and Justice Nitin Jamdar dismissed the plea seeking an orderrestraining Jeevan Prabha cooperative housing society fromdealing with any other builder for redeveloping the Bandraproperty. "Ultimately the work of redevelopment of a housingsociety is such that the society must have confidence in itsdeveloper," said the judges, adding "Once members of the societyhad by a unanimous resolution, before executing the finalagreement, decided not to get the premises developed through the(builder), the society cannot be forced to get the redevelopment work done through (the developer),when prima facie there is no concluded contract."

Gorwani had dragged the housing society to court alleging breach of agreement. According to thebuilder, the society had passed two resolutions in March and June 2011, entrusting the redevelopmentof the building to him. However, in July 2011, the society passed a resolution in a special general body

EMPLOYING COMPANIES TO ENSURE SAFETY OF WOMEN STAFF AT NIGHT

A division bench of Bombay High Court comprising of Justice V M Kanade and Justice P D Kodefastened the liability of the companies and made them responsible for the safety of its womenemployees who travel at night. In the case of a rape of a lady who was travelling at night after finishingher company's work, the judges observed that there was lapse on part of the BPO for not providing asecurity guard and ensuring the safety of the victim. "It was their responsibility to ensure that the girltravelled safely," said Justice Kanade.

Bombay High Court division bench of Justice A M Khanwilkar and Justice R Y Ganoo signaled thatnon compliance of orders by Police won't be tolerated and directed the senior inspector of Bhanduppolice station to personally reply to allegations that despite its order no was given to adargah for a which was allegedly disrupted by . Hearing a petition bythe trustees, whereby direction was sought against a Pakistani National who was claiming itsproperties only because his grand-father Sayyed Mansurul Hasan Shah headed the trust. It wasinformed to the Court that despite the HC's order dated August 17, 2012 to provide police protectionand to ensure that there is no obstruction to a religious ceremony on August 30, 2012, the police were

police protection

religious ceremony Pakistani national

BOMBAY HIGH COURT DIRECTS FOR PERSONAL REPLY OFSENIOR POLICE INSPECTOR AS DESPITE ORDERS POLICE WAS NOTGIVEN FOR DARGAH CEREMONY

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absent. They submitted that Wasim-ur-Rehman alongwith some anti-social elements threatened thepetitioners and disciples from entering the dargah.When they complained to the police, they werethreatened that we'll be arrested.

Police is no more rakshaks but are public bhakshaks and rakshaks of wrong doers. Infact corruption isdeep rooted and they act as extortionist and people have lost faith in the Police. When a crime iscommitted the Police does not register FIR and at times infact harasses the victim to such extent thatthey either are forced to withdraw the complaint or live a life with injustice being their heart beat andthey bear it daily.


COURT REJECTED POLICE INSPECTORS ARGUMENT THAT THE SPCACOULD NOT HAVE RECOMMENDED BOTH DEPARTMENTAL AND CRIMINALPROCEEDINGS AGAINST HIM. CALLS AN ARREST MADE WITHOUT THEEMERGENCY CONTAMPLATED BY SECTION 151 OF CrPc. ILLEGAL

A division bench of Justices A P Lavande and U V Bakre of The high court of Bombay at Goadismissed a petition filed by a police inspector challenging an order passed by the state policecomplaints authority directing the government to take action against him for 'illegally' detaining aperson.

The victim had alleged before the SPCAthat the Police Inspector Ramanand Chodankar had assaultedhim with a koita on his left forearm, when he questioned the P.I. about cutting the 'bhendi' tree in hisproperty. After the incident, Namdev was sent to GMC by the Old Goa police for treatment. When hereturned to the police station to register a complaint against the P.I. Ramanand, the PI ordered the arrestof the victim under Section 151 of CrPC, instead of registering the complaint.

The SPCA directed the state to take all required steps to institute competent criminal and disciplinaryproceedings against Gawade and his associate Hunashikatti within six months. Gawade approachedthe high court, and while the petition was pending, the state issued a charge memorandum to Gawadeon August 1. The argument was made that SPCA could have recommended either a departmentalproceeding or criminal proceeding, but not both. However, Advocate general A N S Nadkarni pointedout that SPCA's recommendation for departmental and criminal action is binding on the governmentas per directions of the Supreme Court.

Rejecting the petition the bench stated, "An arrest made without the emergency contemplated bySection 151 of CrPC is illegal. It is very difficult to understand why (al)though only a non-cognizablecase was registered against Namdev, it was felt he should be arrested by way of preventive actionunder Section 151 of CrPC after he returned from hospital, without even recording his statement toknow how he had sustained an injury from a sharp object." Namdev's arrest appears to be very casual,the court added.

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FIRST CITIZEN OF NAGPUR DEFENDS VIOLATION OF HIGH COURT ORDERS

The Nagpur's first citizen i.e. mayorAnil Sole himself justified illegal erection of Ganesh pandals thatcompletely or partially block the roads. Ganesh pandals continue to flourish despite clear directivesby Nagpur bench of (PIL No. 6181/2008) in its historic verdict banning all pandals,welcome gates, arches and even posters/banners and hoardings that hinder the smooth flow of traffic.However, one such pandal is in mayor Anil Sole's own ward in Dharampeth at Zenda Square. Thismandal belongs to former corporator Baba Maind and his wife Vishaka is now corporator of this ward."They are establishing the idol there since last 25 years," Sole tried to justify. Maind himself justifiedhis mandal's pandal. "We have taken permissions from Nagpur Municipal Corporation (NMC) andtraffic police. Every year, we abide by all laws and seek permissions from all entities," he said.However, assistant municipal commissioner of Dharampeth Zone, Mahesh Morone denied havingreceived any application from Maind for setting up the big pandal. Maind clarified that Morone wasnot in office when they had applied for the permissions. "We have also applied to the traffic police, butthey take time to give permission," he said. Any permission given to any mandal which flouts Courtorders will be in Contempt of Court.

Another such illegal pandal is coming up bang in of the road atAbhyankar Nagar. It belongsto leader of opposition in the NMC, Vikas Thakre. The 25 years old mandal's pandal blocks the entireroad, resulting in traffic getting disrupted. Despite many complaints by nearby residents to themunicipal commissioner and commissioner of police,Ankush Dhanvijay, no action has been taken.

Any such mandal which blocks flow of traffic must be informed to the Police and if the Police does notact then a Contempt Proceedings must be filed against the Mandal as well as the Police. Once any oneis punished the law will be implemented to the fullest.

Bombay High Court

the middle

MISSION JUSTICE VIEW:

FIR MUST BE REGISTERED EVEN IF THERE IS A LAPSE OF 6 YEARSRULES Bombay HC

A division bench of Justice A M Khanwilkar and Justice R Y Ganoo rapped up Pune police and set aprecedent that there is no need to conduct a preliminary inquiry in every case. The Police did notregister FIR on the complaint of the accused in a murder case. The Court was hearing a plea byAnushree Kundra (39), an undertrial in Yerawada jail for killing her former lover's fiancee.

Anushree said even after she wrote on March 3, 2012, to the Wanowrie police station and the Punepolice commissioner to register an FIR against Nimesh, for cheating her and having relation with heron promise of marriage, they did not head to her complaint. Additional government pleader PurnimaKantharia justified the action of the Pune police. She said a preliminary probe showed that theallegation was false. She also questioned whyAnushree waited for six years to register the complaint.But Justice Khanwilkar said, "Nobody approaches the police after a promise is made. There has to bea reasonable period in between,'' He asked why the FIR was not filed though the allegations arecognizable. The judges directed the police "to register the FIR forthwith''.

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COURT NEWSEx-MLA ARUN GAWLI GOES LIFE TIME GALLOPS

In a big blow to underworld a special MCOCA courtsentenced gangster-turned-politician Arun Gawli to lifeimprisonment for the March 2007 murder of former ShivSena corporator Kamlakar Jamsandekar.

Gawli used to operate from the warren of tenementscalled Dagdi Chawl in Byculla. He entered politics in1998, floating the Akhil Bharatiya Sena, and became anMLAin 2004.

Besides the life term for murder and conspiring tocommit an organized crime, Gawli was also beingsentenced to 10 years in jail each for extortion and beinga member of an organized crime syndicate. But the terms would run concurrently.

Ten of his accomplices also received life terms while the 12th convict was sentenced to 10 yearsrigorous imprisonment for extortion and being a member of an organized crime syndicate. Further,the Special judge Prithviraj Chavan fined the 12 accused Rs 1.5 crore—Gawli was asked to pay thebiggest chunk of Rs 18 lakh—under various sections of the Maharashtra Control of Crime Act(MCOCA), Arms Act and the Indian Penal Code. If the amount is recovered from the accused, 40%or Rs 60 lakh, should go to Jamsandekar's widow as compensation, he ruled. In case they can't payup, they will have to serve more time.

The court had also acquitted three accused, Surendra Panchal, Dinesh Narkar and Ganesh Salvi.

ACTRESS MOVES HC AGAINST A RELIGIOUS STRUCTURE

Television actor Kunika Lal has approached the Bombay High Courtagainst a religious structure that she claims was unauthorisedly constructedon a plot of land in Jogeshwari which was reserved for a school playgroundand claimed that she was one of the trustees of the school institution.She alleged that the structure was put up illegally by the Markazul MarifEducation Research Centre.

Hearing Kunika's petition, a division bench of Justice Sharad Bobade andJustice Rajesh ketkar sought to know from the Maharashtra government ifthere was any judgment which had ordered a removal of a religiousstructure from a playground or a public road. The judges remarked that suchan order if available could serve as a precedent.

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COURT NEWS

BROTHER'S WIFE ENJOYS SPECIAL RELATION WITH HER ONLY TOFRAME HER IN MATRIMONIAL CASES

The Bombay high court division bench of Justice V M Kanade and Justice P D Kode admitted apetition filed by Gayatri Jhaveri seeking to quash a criminal complaint filed against her by sister-in-law Sheetal Mafatlal and stated that a married woman's relationship with her sister-in-law is aspecial one, second only to the one she shares with her mother-in-law.

A few weeks ago, the Mafatlal family dispute was partly settled after a lengthy apology from AtulyaMaftalal to his wife Sheetal as well as apologies from her stepdaughter Marushka and one of hissisters. All cases were quashed against each other but the case filed by Sheetal against Atulya's othersister, Gayatri, remained. Efforts by Justice Kanade to get Gayatri and Sheetal to apologize to eachother had failed.

After her stepdaughter filed a complaint against her for the alleged theft of about 40 valuablepaintings from her home, which Sheetal had denied, the latter filed a complaint against Marushka,Gayatri and 11 others, including Atulya, for "harassing and treating her cruelly" for five years.Sheetal said it was a case under Section 498A of the IPC for cruelty, which attracts a maximum jailterm of three years. The case against Marushka and Atulya has been quashed. Besides, the case filedby Marushka against Sheetal has also been quashed.

QUOTES

1. Every man has his price, I will bribe left and right – Edward Robert Bulwer – Lytton.

2. When their lordships asked Bacon how many bribes he had taken, he had at least the grace to get very red in

the face – Edmund C. Bentley.

3. Honestly stands at the gate and knocks and bribery enters in – Barnabe Rich.

4. Though the bribe be small, yet the fault is great – Sir Edward Coke.

5. The selfish spirit of commerce knows no country and feels no passion of principle but that of gain –

Thomas Jefferson.

6. Of course there's a different law for the rich and the poor; otherwise who would go into business? – E.

Ralph Stewart.

7. It must be remembered that all trade is and must be in a sense selfish – John Duke Coleridge.

8. Worse people worse laws – English proverb.

9. Laws are made by the conqueror and accepted by the conquered – Latin proverb.

10. Be you never so high, the law is above you – Proverb.

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FUTURE OF LEGAL SYSTEM – A DREAM

In Hindi “Parivartan Sansaar ka Niyam Hai” a universal truth that things have to changeaccording to the need of the hour. Be it a system or a custom or practice and / or procedure, it mustchange as per the need of the time, if not, it will automatically collapse sooner than late

r.Over last few years on account of progress in the field of science and technology things

have undergone drastic changes. From the use of manual typewriter, we have as of now enteredinto the era of computer and internet. The overall result is that the world has become very small.Thus, there are changes in every field. Still what has not changed is the plight of poor litigants.Century old laws, rules and regulation and legal system introduced long-long back are still beingfollowed. Though during last few years attempts are made to improve the system by changes hereand there, however the measures taken in this behalf are not sufficient considering the need of thetime, the backlog in Courts and the pressure increasing on Courts by leaps and bounds.Introduction of “Lok – Adalats” and “System of Mediation Centres” are to some extent provinghelpful in defusing the ever increasing pressure, but still a lot is desired. The litigation today is notonly time consuming, but is very costly and true to the phrase that “LITIGATION IS ALUXURY”, a “Luxury” that the middle class people cannot afford. Even if one ventures to meetsuch a luxury – he or she plays a gamble, because no one is not sure about the final results, onaccount of complexity and technicalities around law. Thus, under the prevailing legal system theplight of the poor litigant is very-very desperate and miserable.

It is now encumbant upon the government machineries, legal fraternity, social organizationand media to create awareness amongst the litigants to attract them more and more to approach theLok-adalats and Mediation Centres and earn benefit out of it to settle their disputes in suchcentres. The net result would be three fold i.e. it will save the poor litigants from the burden ofluxury of litigation and simultaneously it will save a very valuable time of the litigants who arealready facing shortage of time in their fast moving daily life in the city like Mumbai and othermetro cities in India. Thirdly and most importantly it will to a very great extent relieve the burdenof Hon'ble Courts, which are already over flooded with unending litigation.

Therefore, with proper implementation and adequate awareness amongst the litigantsabout Lok-adalats and Mediation Centres, we may see a dream come true through such drasticchanges in prevailing legal system in future.

On account of ever increasing burden upon the judiciary / courts, before the presentlyprevailing legal system collapses, it is necessary that changes in the system are introduced to drawthe litigants more and more towards Lok-adalats and mediation centres. It is also necessary toclarify here that the anxiety in the mind of a few that such a system would adversely affect thelawyers and that the lawyers will not have the work is just a false notion or false inference and isnot correct. According to me it will be the role of the lawyers which would undergo a change.Instead of battling tooth and nails in Courts, the advocates and lawyers will be seen in new role ofadvisor the litigants to go to the Lok-adalats and / or advise the litigants who would like to settletheir disputes in the Mediation

Centres and while rendering such services the lawyers will be paid.

I have seen this dream and it is my pleasure to share my thoughts with you through this

article. May be, many will be able to give better guidance, ideas and advices. Such contribution

will enable us to meet the future challenges as resources will be diverted to productivity rather

than standing in queue for getting adjournments. It will also help public causes, which will get

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heard effectively. The activists who struggle like freedom fighters will be able to enjoy thefreedom and work in tension free atmosphere. The steps may initially appear a burden butultimately will help us handing over a better Nation to the Next Generation.

Afour point programme for better Nation.

This is in reference toAdvocatesAct wherein the Bar Council is also empowered to constitute one

or more LegalAid Committees u/s. 9 (A) of theAdvocatesAct, 1961.

If the Bar Council establishes, in each Court, a pre-litigation mediation forum, it will be

very helpful to the society at large. The pre-litigation mediation forum would have to be endorsed

by the High Court and / orApex Court. Each Committee will have approximately 9 members, who

will be Advocates, supervising the pre-litigation Mediation. Apart from this, for pre-litigation

mediation, the Committee can take help of any advocate or any professional, only with a view to

ensure that litigation is avoided and people can walk happily having settled their dispute.

A Complaint / Plaint of maximum 3 pages, with maximum 15 pages of Exhibits, having

only relevant points being highlighted, can be tendered to the Centre and nominal administration

cost of say Rs. 500.00 shall have to be paid.Anotice will be sent to the other side to come and try to

settle the dispute in the Mediator Centre and to avoid litigation in court. In case the other party

comes with his documents, the Mediator will try and settle the dispute by informing the parties

about the basic law. In case of need of an expert mediator, the matter can be referred to a person

having experience in that field. If both parties agree, then admitted facts will be recorded. The

disputed issues will be recorded separately and the matter can be referred toArbitrator by consent

of parties. Both parties will tender documents with regard to the disputed issues only. In case of the

matter being referred to court, only the disputed issue(s) with pleadings, will be referred to the

court and all other things will be avoided.

In case, the opponent does not turn up, the Mediator will prepare a report after giving two

opportunities to the opponent party.

This will make the system more effective and fast. Certainly this will ensure the settlement

of the disputes expeditiously.

PRE-LITIGATION MEDIATION –APOSSIBLE SOLUTION

COMMITTEE

HOW IT WILL WORK

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and Arbitration and not Courts of adjudication. Today the reality is that Suits are keptpending for years and then the wrong doers try to show bonafide by offering principal amount plusnominal interest or even no interest at all. There are no options left for the claimant as he feels thatpendency of dispute will cause more injustice than the injustice done by the wrongdoer. If we havepre-litigation mediation and have faster justice, things will be different. The claimant would bemore satisfied as he gets fast results with minimum financial burden. Is it not desirable? By allmeans “yes”. Therefore, such a move and system needs to be encouraged.

Today PIL's are very common. Courts are over flooded with Public Interest Litigations. At

times they are frivolous. Also there are multiple PIL's being filed on same cause and issue and the

same drains the valuable time of already burdened judiciary. In many cases PILs are filed on

flimsy grounds or with vested interest under the guise of public interest.

If at all, the Bar Council has a Committee of legal aid to ensure that the proper case reaches

the proper Forum; it would be helpful for public cause. The Bar Council can form PIL Committee

of 9 or such number of members each. There will be separate Committees for PIL against the

Municipal Corporations, Child Rights, Human Rights, Right to Information, Environment, etc.

The copy of each PIL shall be furnished to the Committee for scrutiny. Preliminary note by the

petitioner will just be of issues, grounds and facts of maximum 7 papers.

For further research on the issue the help of students of law can be taken, who will prepare

report of maximum 15 – 20 pages and bring up all legal precedent. Thus, final PIL with facts and

grounds shall be ready with judgments. It shall be uploaded on the website of Bar Council / PIL

and shall be presented to the judiciary for necessary directions. Before referring the matter to the

judiciary for necessary directions, letter of request to be sent to the government department and in

case they wish to give undertaking that the issue will be resolved soon then only a reference will be

made to the Chief justice of the High Court, with the undertaking to the government to comply

with the requisites being filed by theAdvocate general. This request method will on one hand help

genuine issue cases come in light alongwith proper pleadings and law, avoid burdening the court

with multiple litigation and at the same time a letter of request to look into the issue, will help the

government to avoid litigation and solve the problem. This will encourage causes to be put up with

good spirit and justice will be done without litigation. This will also serve the social agenda of

students and lawyers who can utilise their valuable time for some good causes. Also there is a

possibility that the same issue is pending before more than one High Court e.g. Service Tax on

lawyers. In such cases, if pointed out theApex Court, through a special committee of Judges, must

refer the case toApex Court immediately to avoid further complication on account of 2 conflicting

opinions of 2 High Courts. The PIL can also be put up online for the common man to give inputs.

This will go a long way to change the way we see public causes at present.

PUBLIC INTEREST LITIGATION –ANEWAVTAAR

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EDUCATING THE LAWYER CLASSAND MASSES

A Common man does not know about the law. Law doesn't mean mere litigation, but also

includes guidance to the people about their rights. Following are the list of general queries which

are put up by the common man:-

(i) FIR / NC – What if FIR is refused.

(ii) Traffic Rules – Fines and how to pay fines and rights of offenders.

(iii) Shops Licences

(iv) Profession Tax

(v) 138 of Negotiable InstrumentsAct & Money Suits

(vi) Complaint against Judges and police

(vii) Complaint against Doctors

(viii) Right to Information

(ix) Various BMC rules of Rent / Pets license, putting water tanks etc.

(x) Marriage certificate – Rules and how to obtain it.

(xi) Consumer complaints of petty nature

(xii) Cooperative Society laws and other laws like apartment laws.

(xiii) D.C. rules & Regulations

(xiv) Slums RehabilitationAgency & Redevelopment

(xv) Cyber laws and social sales / email / mobile

(xvi) Extension of shops / flats

(xvii) Pollution rules for common man

(xviii)Where to file complaint for footpath / roads, etc.

(xix) Complaint for children or against begging

(xx) Bank / credit cards / debit cards etc.

(xxi) Shares / MF, Complaints etc.

(xxii) Weight & MeasurementAct – rights of consumer and traders.

(xxiii)Cartels and how law can be used to avoid and curb cartel.

(xxiv) Bonafide certificate,Affidavit / Notary /Attestation.

(xxv) Food SafetyAct.

If we can design proper lectures and seminars on such subjects and each seminar is of 2-3

hrs., it will enable the common man to understand his right and if he is able to protect his right then

there will minimum litigations. These lectures can be sponsored by providers of law related

products etc. They can also be uploaded on websites and even on social networks. This will make

us more aware of our rights and will also make us meet the challenges of law faced by people in

general in their day to day life.

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REWORKING OFLAWS

In India we have so many laws which overlap each other. There may be an act which is

lawful under one law but unlawful under another. An offence may be punishable under Indian

Penal Code, so also under another special enactment. We are in an over legislated state, where we

also have laws of the British Raj still in existence with least amendments. There are laws which are

outdated and of no effect. There is a need of a composite act on taxation, another on family laws

related to the parents, siblings and children.Aseparate code for child rights to cover from the right

to be born to the rights till one attains majority is a must. The system of state amendments is also

now outdated and we must accept a single codified Act. All this is not easy and for which we

require lot of efforts. If committees are formed and we start working on it, over a period we may be

able to replace it with a fresh system of new laws which are updated to the need of the hour. If we

have a committee of 9 members in each state reviewing all outdated and overlapping acts / laws or

part thereof it will give us some relief. Apart from this, many acts must be clubbed to make a

comprehensive single act. If we start doing it today then may be by 2015, we may see a session of

parliament where around 20 acts are passed and 200 old acts are repealed.

We need to ensure now that we move to an era where even anticipatory bail has the same

system across the nations. May be one day we will see a lawyer sitting in Delhi arguing matter

through digital media in Chennai and he need not look at the state amendments, the reaction of

Judges statewise or the procedure of that state. What will be there, will be a black and white

written laws and a judge who sees no face value.

We invite suggestion and comments from the readers and a active participation of all for betterNation.

Author - Siddharth Murarka, Advocate is practicing in various Courts and is Convenor of a movement MISSION JUSTICE

DID YOU KNOW

Sarvepalli Radhakrishnan, who was India's first Vice President and second President,clarified the adopted flag and described its significance as follows:

Bhagwa

dharma

or the saffron colour denotes renunciation or disinterestedness. Our leaders must

be indifferent to material gains and dedicate themselves to their work. The white in the

centre is light, the path of truth to guide our conduct. The green shows our relation to (the)

soil, our relation to the plant life here, on which all other life depends. The "Ashoka Chakra"

in the centre of the white is the wheel of the law of dharma. Truth or satya, or virtue

ought to be the controlling principle of those who work under this flag. Again, the wheel

denotes motion. There is death in stagnation. There is life in movement. India should no

more resist change, it must move and go forward. The wheel represents the dynamism of a

peaceful change.

mission justice issue 1

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