Dispense with appearance of accused in Criminal Trails

 

Statue

1. 317(1) of Code of Criminal Procedure, 1973
1. At any stage of an inquiry or trail under the code, if the Judge/Magistrate is satisfied for reasons to be recorded, that personal attendance of the accused before the court is not necessary in the interest of justice, the Judge/Magistrate may if the accused is represented by a pleader, dispense with this attendance and proceed with such inquiry or trial in his absence and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused;
2. High Court & Session court - 482 CrPC

Important Points

1. Normal Rule of Evidence - Case shall be taken in the presence of the accused.
2. However even in absence of the accused, evidence can be taken but then his counsel should be present 
3. It is discretionary power to exempt the personal appearance 
4. Petitioner take a undertaking that he would appear before the trail court on all hearing dates as specifically directed by that court.

Questions

1. Accused on BAIL be allowed to GO ABROAD for his employment?

Ans : Yes, Right of the accused to carry on his occupation cannot be curtailed while ensuring the culmination of legal process.

If court is satisfied that, in the interest of justice, the personal attendance of an accused before it need not be insisted on, then court has power to dispense with his attendance. 

2. What can be Conditions to travel abroad on Bail?

Ans : he should file affidavit in the concerned Magistrate Court that he would appear before that court as and when required by the Court.  

            He should engage a counsel to appear before the trail court

  The affidavit should also undertake that the counsel engaged by him would appear before the trail court on his behalf on each and every date of hearing.

The Petitioner SHALL NOT object to the recording the evidence in his absence.

No adjournment shall be asked for on his behalf. 

 

 

        

Case Laws

1. Bhaskar Industries Limited Vs Bhiwani Denim and Apparels Limited : AIR 2001 SC 3625
1. Precaution which court should taken while dispensing with appearance 
2. Undertaking by applicant that he WOULD NOT dispute his identity as the particular accused in the case
3. Counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence.
2. Puneet Dalmia Vs C.B.I : AIR 2020 SC 214
1. Apex Court observed
2. However, the principles for grant of exception as observed by this court in the case of Bhaskar Industries Limited ( Supra) can be made applicable to the facts of the case on hand also and the appellant can be granted the exemption on certain conditions and on filing an undertaking by the appellant, by which the interest of justice can be protected and grant of exemption may not ultimately affect the conclusion of the trail at the earlier"
3. Noorjahan Vs Modeen : 2000 (2) KLT 756
1. Apex Court held 
2. Court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the accused recorded through this counsel, who is specifically authorised for that purpose.
4. Raju Vs State of Keral ( 2009 3 KHC 14 )
1. Offence alleged against Petitioner are punishable u/s 498A, 506(i) IPC
2. There will not be any need for the prosecution witness to identify him in the court as the offender. If the petitioner undertakes that he would appear before the trail court on all hearing dates as may be specifically directed by that court, he can be exempted from personal appearance before the court and he can be allowed to be represented through consul and permission can be granted to him to leave the country for employment.

Sources

Rape Laws

 

Statues

1. IPC 
1. 365,
2. 366 - Kidnapping
3. 376 - Rape
4. 376D - Gang Rape
5. 506 - Criminal Intimidation
2. Section 3 & 4 of POCSO Act

Important Points

1. Subsequent marriage between the victim and accused will NOT be absolve of the rape charge.
1. Rape is a serious offence and that no amount of compromise between the parties is sufficient to quash the FIR or waive off the punishment for rape u/s 376 CrPC.
2. Criminal Law ( Amendment ) Act, 2018 
1. increased min punishment for rape under 376 of IPC to 10y [ Manoj Mishra Vs State of UP ] - prior it was min 7y

Points to consider for Reduction of punishment

1. Age of the accused
2. previous criminal antecedents 
3. Family - if any dependents children or elderly 
4. No apprehension that appellant would indulge in similar acts 

Case Laws

1. Munna Khan Vs State of UP
1. Facts : 
1. Women alleges of rape and compelling her to change her religion ( UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020 )
2. Order
1. Bail granted to accused 
3. Reasons
1. Applicant and complainant were in relationship from last 4y
2. No Objection or resistance from side of the complainant
3. All of a sudden, after coming this Ordinance into existence, she got aware about her rights.
4. Her mental thinking exposes about her conduct.
5. She was willful and active participant in all actions faced by her during 4y

Arguments For

1. Obscene photographs and vides of victim and used them as tools of blackmail into maintaining physical relationship

Arguments Against

1. Willful conduct, self admission
2. Long continuous relationship
3. No recovery of obscene still photographs or video said to have been used to blackmail victim.

Precautions

1. Check if the victim is a child, ossification test
1. if child 365 IPC applies 

Source

Covid-19

 

Update on Vaccination

1. 2021/06/17 - 25.45 Cr ( administered ) - 27.28 Cr ( supplied ) - link - 4y to vaccinate 1.35B
2. 2021/06/13 - 25.12 Cr ( administered ) - 26.64 Cr ( supplied ) - link
3. 2021/05/12 - 17.52 Cr ( administered )

What are the causes of vaccine wastage ?

1. Vaccine wastage is unavoidable.
2. 10% of C19 vaccines procured by center face "Programmatic wastage"
3. Wastage Multiplication Factor ( WMF ) is taken into consideration while planning vaccination program. WMP = 1.11 for Covid-19 allowing programmatic wastage = 10% 
1. WMT = 100 / ( 100 - wastage ) = 100 / ( 100 - 10) = 100/ 90 = 1.11
4. Vaccine wastage happens during
1. Transportation - Breaking, getting damaged
2. Storage - Particular Temperature Range
3. Pilferage - vaccine stolen
4. Contamination of vaccine after opening it in another way
5. Opened vaccine has to used within a fixed time ( about 4hrs )
6. Vaccine hesitancy is high or remote area  which are not densely populated.
5. Covid-19 Vaccine supplied at multi-dose vials, each vial having 10 doses of vaccine. 

What is Negative wastage of Vaccine?

1. Staggering the beneficiary
2. Open vials which have earlier expiry Date
3. It is possible to extract 11-12 does instead of 10 does by careful administration due to WMF
4. State like - Kerala, West Bengal, Himachal Pradesh have registered Negative vaccine wastage 

What can be done to reduce vaccine wastage?

1. Proper planning and care 
1. Vials with earlier expiry data should be used before.
2. Each vial has 10 doses, if Judiciously used 11-12 doses can be extracted by Opening new vial only when there are certain number of beneficiaries present.
3. Staggered and continuous movement of beneficiaries can ensure that there are aleast 10 beneficiaries available within 4hrs
2. Retrain and reorient vaccinators to ensure judicious usage of the vaccines
3. Wastage more than national average will be adjusted from the subsequent allocations to that state or union territory.
4. Reduce wastage during transport
5. Correct temperature should be maintained with Temperature log
1. Deviation quickly noticed and corrective measures taken
2. Any damaged storage equipment should be quickly replaced.
6. Filling extra vaccine in a vile is common practise. 

Nodal authority Publishing Data of Vaccination

1. Ministry of Health and Family Welfare ( MoHFW)

Supreme Court Suo Motu  ( 3 J Bench - DYC, Nageswar Rao, Ravindra Bhat )

1. Earlier center vaccination policy was termed arbitrary.
2. Digital Divide - accessing vaccine - link
1. Central govt says that if a person does not have access to either internet or digital devices or does not wish to self-register, but wants to get vaccinated he can visit nearest vaccination center where the health worker of the center would register him in device and he would be vaccinated.
2. Walk-in ( On site registration ) vaccination is permissible for all and digital divide is not constraint for access to vaccination.
3. Involve Private hospitals in vaccination drive 
1. 55% of population of country seeks and gets medical care and health service from private hospitals
2. Public health program - be it vaccination or otherwise involvement of private hospitals is always found desirable. 
4. Non-transferable electronic vouchers
1. any person / institution / industry / NGO having financial ability can purchase and give it economically weaker sections of the society.
2. Vouchers can be redeemed by the recipient of voucher at private vaccination center and can get free vaccination.
5. Door to Door vaccination
1. for disable will not be carried on as it is not provisioned under National C19 vaccination programme
2. Risk of break in cold chain, vaccine wastage, delay in reaching health facility resulting in derailment of time schedule 
3. Expert committee - community based approach of Near-to-Home COVID vaccination centers for differently abled and elderly citizens.
6. SC - Death Certificate 
1. Should have cause of death - death due to covid
2. Duty of every authority to issue accurate/correct death certificate stating the correct and accurate cause of death, so that the family members of the deceased who died due to covid may not face any difficulty in getting benefits of the schemes that may be declared by the government for the death of the deceased who died due to Covid
3. Reepak Kansal Vs Union of India LL 2021 SC 276

Source : 

1. https://www.businesstoday.in/current/economy-politics/covid-19-how-vaccine-wastage-happens-how-to-reduce-it/story/438906.html - link
2. Unicef - vaccination wastage assessment - link

Webinar

Important Webinar

My Webinars

1. Stridhana Vs Dowry - link
2. False Accusation 182/ 211 IPC - link
3. Contempt of Court - link
4. Child custody matter Part II - link
5. Child custody matter Part I - link
6. Guidelines on Maintenance - Rajnesh Vs Neha 2020 - link
7. Cross Examination Part II - link
8. Indian Evidence Act Part II - link
9. Indian Evidence Act Part I - link
10. All about RTI - link

Reservation for Persons with Disabilities

 

Statute

1. Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation ) Act, 1995 - Replaced with Rights of persons with Disabilities Act 2016
2. Adoption of the Proclamation on the Full participation and Equality of People with Disabilities in the Asian and Pacific Region in the meeting of member states of Economic and Social Commission for Asia and Pacific held in Beijing in December 1992 - India was a signatory
3. 2007 - India ratified the United Nations Convention on the Rights of Persons with Disabilities ( UNCRPD ) 
4. Parliment enacted - The Rights of Person with Disabilities Act, 2016

Section 34 of 2016 Act

Reservation 

1. Every appropriate Government SHALL appoint in every Government establishment, NOT less than 4% of the total number of vacancies in the cader strength in each group of post meant to be filled with person with benchmark disabilities of which one per cent, each SHALL be reserved for persons with benchmark disabilities under clause(a), (b) and (c) and 1% for benchmark disabilities under clauses (d) & (e)
1. (a) - blindness and low vision;
2. (b) - deaf and hard of hearing
3. (c) - locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victim and muscular dystrophy;
4. (d) autism, intellectual disability, specific learning disability and mental illness;
5. (e) multiple disabilities from amongst persons under (a) to (d) including deaf-blindness in post identified for each disabilities

Important Points

1. Person with Physical disabilities have Right to Reservation in PROMOTION
2. 1995 Act  recognizes right to reservation in promotion
3. Identification of posts for reservation as per Section 32 of 1995 Act is a prerequisite for appointment, but appointment cannot be frustrated by refusing to identify posts.
4. The absence of provision for reservation in the recruitment rules will not defeat the right of PWD as such right flows from legislation.
5. Reservation to promotion can be given to a PWD even if the person was not originally appointed in PWD quota.
6. Mode of recruitment immaterial for asserting rights under the PWD Act.
7. A resistance to such reservation is obvious from the delaying tactics adopted by most of the govt authorities in truly implementing the intent.
8. It is shown that sometimes it is easier to bring a legislation into force but far more difficult to change social mind set which would endeavour to find ways and means to defeat the intent of the Act 
9. Only CAVEAT - if govt is of the view that the posts in the promotional cadre cannot be reserved for PwD category DUE to functional or other reason and that should not be ruse to defeat the reservation in promotion.

Argument against such Reservation

1. Compassionate Appointment and not PWD quota
1. Rejecting this argument : To accept it would be discriminatory and violative of the mandate of the Constitution.

Unique Points

1. OBC - NCL certificate NEED NOT be produced along with submission of the application and can be produced later - [1]

Statute


Cases

1. Union of India Vs Abdul Rasheed SLP No 3116/2017
2. Indra Sawhney Vs UoI 1992 Supp(3) SCC 217
1. Reservation only max upto 50%
2. Non Creamy layer for OBC
3. Rajeev Kumar Gupta Vs UoI 2016 13 SCC 153
1. Effect of Reservation would be applicable even in promotion
4. Siddaraja Vs State of Karnataka 2020 3 SCALE 99
1. affirmed Rajeev Kumar Gupta ( supra ) 
2. Rule of No reservation in promotion as laid down in Indra Sawhney case has NO APPLICATION to persons with Disability (PWD)
5. State of Kerala Vs Leesamma Joseph
1. Leesamma Joseph - employed on compassionate grounds - Entry point was NOT of a person with disability under 1995 Act
6. National Confederation for Development of Disabled Vs Union of India 2015 SCCOnline Bom 5112
1. Directed benefits of reservation in matters of promotion was also examined
7. Union of India Vs National Federation of Blind
1. Reservation has to be computed with reference to total number of vacancies in cadre strength and no distinction can be made between the post to be filled by direct recruitment and by promotion.
8. 
   

Appendix

Legal Remedies for Lessor and Lessee for rented/lease premises

Important Points

1. A leave and license agreement Unlike an agreement of lease is one which only confers license on the licensee to use the premises for a specific duration subject to several terms and conditions.
2. Such agreement by their nature favor the licensor as they don't confer any rights on the licensee with repect to the property

Definitions

1. Lease : under Transfer of Property Act, 1882 and gets ligitimacy there under
2. Leave and License Agreement : Essentially a license to use a premises a governed under the Indian Easement Act, 1882

Forceful Eviction

1. Landlords can misuse their power and illegally evict the tenants from the premises without following due process of law.
   
   

Procedure for Eviction

1. Repossess the property with due process of law
2. Once vacation order is received lawful eviction, they have to vacate the premises.
3. if tenant fails to vacate the property within the time specified, the law enforcement official may physically remove the tenant.

Protections against Forceful eviction

1. Suit under Specific Relief Act for a special and speedy remedy 
1. Put back in possession of the licensed premises - [1]
2. Necessary Condition - 
1. Licensor evicted wrongful and without following due process of law.
2. Suit for Damages
1. Claim actual monetary damages for the expenses resulting from the illegal eviction which
1. loss of business & Opportunity
2. Temporary accommodation
3. mental harassment & distress
4. Damages caused to movable goods in premises
5. loss of goods while the aggrieved party was locked out.
2. Suit for Damages and Section 6 of Specific Relief Act cannot be clubbed
3. Police Complaint under IPC 1908
1. Sometimes landlord can 
1. utility companies to CUT OFF service to the licensed premisis
2. Changing the locks
3. Threatening the licensee and restricting entry to license premises
2. Such acts amount to harassment and 
3. IPC 1908 - trespass, wrongful eviction, assault, battery, slander, intentional infliction of emotional distress 

Cases

1. Sujit Pal Vs Prabir Kumar Sun

Sources:

1.  https://www.barandbench.com/view-point/legal-remedies-available-to-the-lesseelicensee-against-forceful-eviction
2. 
   

Article 227 - Quash

 

Important Points

1. Superintendence
2. Forum-neutral 
1. power can be exercised both over civil courts as well as criminal courts
3. Power u/s A227 - Wide & Comprehensive

A 227

1. is one of superintendence and is visitorial in nature and will 
1. not be exercised unless there exists a clear jurisdictional error and that maifest or
2. substantial injustice would be caused if power is not exercised in favor of petitioner.
2. Every Hight Court SHALL have the SUPERINTENDENCE over all the courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.
3. The text of the provision is FORUM-NEUTRAL - power under the A227 can be exercised both over civil courts as well as Criminal courts
4. Power u/s Section 482 CrPC can be exercised ONLY with reference to criminal proceeding before criminal court
5. Power u/s A227 is much wider and comprehensive
6. Many cases High court has struck off suits from the file of civil courts on certain grounds even though the parties had remedy under O7 R11 of CPC to seek rejection of plaint

Leading Cases

1. Dr P. Pathamanthan & Others Vs V.Monica & Others (2021) (2) CTC 57
1. Justice N. Anand Venkatesh held the proceeding under Protection of women against Domestic Violence Act ( Act 43 of 2005) are CIVIL in nature
2. Petition u/s 482 CrPC WILL NOT lie to quash them
3. Also laid down the remedies AVAILABLE to aggrieved parties
1. All respondents are NOT accused 
2. NOTICE under Form 3 of DV Rules 2006 have to be issued NOT summons under Section 61 CrPC
3. ALL respondents NEED NOT APPEAR unless compelling reasons are shown otherwise the counsels presence is SUFFICIENT.
4. Magistrate SHOULD apply mind and not all respondents need to be issued notice - so that relatives are not harassed
5. Section 29 - APPEAL TO SESSION court - within 30days
6. Section 25 - POWER OF MAGISTRATE to modify, alter & revoke - change of circumstances 
7. Order 4 Rule 17 CPC - amend the petition
8. Order 1 Rule 10(2) CPC - add/ remove respondents 
9. Article 227 if there exists a clear jurisdictional error and that manifest or substantial injustice
2. Pepsi Foods Ltd Vs Special Judicial Magistarte ( 1998) 5 SCC 649
1. Para 25

Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory.

 

if in a case like the present on the court finds that the appellants could not invoke its jurisdiction under A226, the court can certainly treat the petition one under A227 or section 482 of the code.

 

It may not however, be lost sight of that provision exist in the code of revision and appeal but sometime for immediate relief section 482 of the code or A227 may have to be restored to for correcting some grave errors that might be committed by the subordinate courts.

 

The present petition though filed in the Hight court as one under A226 and 227 could well be treated under A227 of the Constitution