Author: LEXPEEPS editor

INTRODUCTION

The world is undergoing significant changes and developments right now, particularly in the commercial sector, which has seen the establishment of numerous industries, companies, and organizations. In order to raise their concerns or demand any kind of adjustment in their respective company or industry, employers must have some kind of process or activity available to the employees. Strikes and lockouts serve this exact purpose. This status or power imbued by the employer may result in specific issues or points of conflict with the employee or worker. While strikes and lockouts are the most common or well-known methods used by workers, they are not the only options accessible to them. Strikes and lockouts can be seen as a weapon that employees have against their employers.

INDUSTRIAL DISPUTES ACT, 1947

The Industrial Disputes Act, which went into effect on April 1, 1947, gave the right to strike, legal protection in India. Employer & Workmen Conflicts Act, 1869, Trade Disputes Act, 1929, and Rule 81A of the Defence of India Rules were India’s first industrial disputes laws before the Industrial Disputes Act, 1947.

Experiences with the Employer & Workmen Disputes Act of 1869 show that this law was largely in the workers’ favour. A special provision for strikes was included in the Trade Disputes Act of 1929, however, due to strike-related issues and ongoing disputes, this legislation was unable to bring about peace in the industries. During the Second World War, Rule 81A of the defence rule was introduced to further combat this. The Industrial Disputes Act of 1947 was created to resolve disputes in industries after World War II. The entirety of India is included in its scope of application. It applies to active industries, not to dormant ones.

STANDARD VACUUM OIL COMPANY OF MADRAS v. GUNASEELAM

The case’s facts are as follows: in the present, a group of employees from a particular company wanted to take a day off to celebrate “May Day.” Since they were choosing to take a day off, the group of employees was even willing to make up for the company’s losses for the day of “May Day” by working extra hours and thus, asked their employer to declare it a holiday.

However, the workers’ demands and cries for help were all met with a stone wall. As a result, the workers purposefully requested time off because their employer had forgotten to designate May Day as a holiday. Employees’ requests for unscheduled leave were ruled not to constitute a strike because there was no “cessation of work” or organized refusal to work.

UNDERSTANDING STRIKES

A strike is a potent tool used by trade unions, other organizations, or workers to express their demands or complaints against employers or industry management. In a different sense, it is the interruption of labour brought on by widespread protests. By refusing to report to work until their demands have been met, employees put pressure on their employers. Strikes may benefit the welfare of the workforce or they may result in economic losses for the nation.

VARIOUS TYPES OF STRIKES

Based on the global phenomenon of strikes, several types of strikes have been experienced, including economic strikes, sympathy strikes, general strikes, sit-down strikes, slow-motion strikes, hunger strikes, and wildcat strikes.

• Economic Strike: This type of strike is brought on by demands for increased wages and benefits including bonus payments, housing rent allowances, and transportation allowances.
• Sympathy Strikes: During these strikes, unions or employees in one industry join strikes that have already been supported by other unions or employees.
• General strikes are actions taken by all unions or members in a state or region to put more political pressure on the government.
• Sit-down strikes: In this scenario, employees stage walkouts at their places of employment, refusing to report for duty until their demands are met.
• Slow down strike: When employees or unions pressure the industry to meet their demands by limiting or cutting output, they are not going on a complete strike.
• Hunger strike: A difficult form is in which workers go on strike without access to food or water to voice their concerns. In protest of past-due salaries spanning several months, Kingfisher Airlines staff went on a hunger strike.
• Wildcat strikes occur when workers go on strike without the approval of their union or higher authority. In 2004, attorneys staged a wildcat strike at Bangalore’s civil courts in response to reportedly disparaging comments made by an assistant commissioner.

According to Section 2 (q) of the Industrial Dispute Act, a strike is “a cessation of work by a body of individuals employed in any industry acting jointly, or a concerted refusal, or an unwillingness, under a common understanding, of any group of people who are or have been so employed to carry on working or to accept employment.”

In Cox and Kings Limited v. Their Employees, the court determined that a strike can be justified if it is related to a present labour dispute or is intended to protest an unfair labour practice by the employer. One of the most essential tools at the disposal of workers and their organizations to advance their economic and social objectives is strike action. In the event of a labour dispute, it is the most prominent and divisive type of collective action, and it is frequently seen as the final recourse of workers’ organizations in pursuing their goals. Strikes, however, should not be seen separately from the entire field of industrial relations. They are costly and disruptive for employees, companies, and society at large, and when they happen, it is because collective bargaining efforts to improve working conditions failed.

THE REQUIREMENTS OF EXERCISING A STRIKE

The right to strike is frequently subjected to several requirements that must be satisfied by employees and their organizations. However, given the risk that these circumstances could restrict how freely workers and their organizations can plan their actions and develop their programmes, they shouldn’t unnecessarily preclude the use of strikes to protect workers’ interests.

In this regard, the following clauses are frequently included in laws:

• The use of all available conciliation or mediation options before a strike is called;
• The need for a strike ballot to be held, and for a majority of the affected employees to vote in favour of a strike before it can be known.
• The requirement is to give advance notice before calling a strike.

THE BEST WAY TO LIMIT DAMAGE DUE TO A STRIKE

To prevent a closure that would lead to job losses, workers should let the company continue operating. Employers ought to enlist the help of a reliable labour broker who can offer substitute workers during the strike. When dealing with one another, both parties should act politely and professionally.

CONCLUSION

After researching and examining various aspects of strikes, it can be said or inferred that strikes have repeatedly proven to be a very effective strategy used by both employers and employees to exert pressure on the other party to comply with their demands. Over the years, the strike concept has undergone a lot of advancements, which have also resulted in several changes to its application and scope.

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CITATIONS

1. The Industrial Disputes Act, 1947.
2. AIR 1960 Mad 288.
3. 1977 AIR 1666, 1977 SCR (3) 332.
4. Labour Legislation Guidelines, ILO, https://www.ilo.org/legacy/english/dialogue/ifpdial/llg/noframes/ch5.htm.

This article is written by Sneha Sakshi, a second-year BBA LLB student of SLS Pune.

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Introduction

India is a nation where traditions and customs are widely followed. The family’s dignity comes first and they expect to lead a very respectful life in society. There is a huge divide among the population in the country in the name of caste, religion, sex and locality. The prevailing social evils like casteism and discrimination on the grounds of religion, lead to honour killings. Honour killing is a murder performed on an individual either on an outsider or a family member to protect their dignity in society. To date, honour killings are still prevalent in India despite, the development which is happening in the country.

Recently, a Dalit man was killed in Hyderabad by his Muslim wife’s brother. The man was killed because the woman’s family didn’t accept the interfaith marriage. It was also stated by the woman that her brother tried to hang her when she stated that she wanted the marry Nagaraju who even was willing to change into a Muslim for her¹. Due to the deep-rooted traditional cultures present in India, honour killings are based on orthodox beliefs. India is considered to be a patriarchal society where women are seen as a commodity and not as equals to men. They see women as a representation of the family’s reputation. Their rights and choices aren’t given any preferences even when the constitution sees men and women equally.

Defining ‘Honour killing’

An individual is killed in ‘Honour killing’ if a family member or hired killer believes that the person has compromised their moral character and, as a result, tarnished the family’s reputation. Both the victims and the perpetrators of honour killings may be male or female, and the crime may be committed for a variety of criminal reasons. The victim or the offender may be the target of an honour killing in situations where there has been an evident sexual transgression.

Factors causing Honour Killings

The concept of Honour killing was present in India since ancient times. People have reported crimes against their relatives and described these executions as a demonstration carried out to preserve the family’s dignity. Honour killings have historically been committed primarily as sexual orientation-based crimes and have been used as a tool to maintain the dominance of men in society over women. This doesn’t mean that the man has been completely spared from this horror, though.

Illiteracy also is a reason for the honour killings as many of the people wouldn’t be open enough to understand the concepts like homosexuality and inter-caste or faith marriages. Many households aren’t comfortable accepting marriages with lower caste members and this is one of the major factors triggering the honour killings in India especially.

The presence of Khap panchayat is also a reason for the honour crime to be existent in India; also called caste courts. The Khap panchayat, an endogamous, gotra-centric clannish body, developed into a powerful institution in the area around Delhi during the Middle Ages in response to the tenuous state of law and order brought on by the recurrent incursions of foreign invaders into that region. It served two purposes: to protect its members and to mediate conflicts among them. However, the Khap panchayat is an unauthorized organization to declare that something is unethical because of their ideologies.

The case of Laxmi Kahhwaha v. The Rajasthan State² along with a PIL (Public Interest Litigation)had drawn the attention of the Rajasthan High Court. The court had observed that these unconstitutional self-styled panchayat systems have been imposing their authority on the weaker sections of the society, especially on women. It further observed, “These panchayats had no position whatsoever to pass social blacklists, or impose any fine on someone and ignore a person’s basic rights.”

Provisions present against the Honour Killings in India

Constitutional framework-

The offence of Honour killing is against the fundamental rights assured by the Constitution. It violates Article14, 15 (1) and (3), 17, 18, 19. It also violates Article 21 i.e., the Right to Protection of life and personal liberty which says that no person shall be deprived of his life or personal liberty except according to procedure established by law³ which cannot be infringed unless prescribed by the law which is fair, free and just as per the case of Maneka Gandhi v. Union of India⁴.

On the recommendation of the community panchayat, a 20-year-old woman in West Bengal was gang raped because she was dating a guy from a different group. The Supreme Court took suo moto cognizance of the case⁵. As part of Article 21 of the Indian Constitution, the Court reaffirmed that the State has a responsibility to uphold the right to choose one’s spouse.

Under Section 3 of the Indian Majority Act, 1875 any person who has attained 18 years of their age is considered to be a major⁶. However, the eligibility for marriage is 18 years for women and 21 years for men where they have the right to choose their partner and it was held in the case of Lata Singh v. State of U.P. & Anr.⁷ by the Division bench of the Supreme Court that the inter-caste marriages are valid according to the Hindu Marriage Act and it was also stated that if the parents had a problem in such marriage, they can cut the social relations with them but they don’t have any right to harm the couple. In the event of such violence, the court can institute criminal proceedings against them. The Supreme Court, in the petition by the NGO Shakti Vahini v. Union of India⁸ declared, “It is illegal for Khap panchayats to scuttle marriages between two consenting adults.”

Indian Penal Code 1860⁹ provisions-

Any individual found guilty of murder or culpable homicide that does not amount to murder is punished under Sections 299–304. The murder penalty consists of a fine, life in prison, or death. Culpable homicide that is not murder is punishable by a fine and life in prison or a maximum of 10 years in jail.

Section 307: Threatening to kill is punishable by up to 10 years in prison and a fine. If someone is hurt, the sentence may be increased to life in prison.

Section 308: Penalties for attempting to commit culpable homicide include up to three years in jail, a fine, or both. If it results in harm, the offender faces up to 7 years in prison, a fine, or both.

Criminalize anyone who participates in a criminal conspiracy under Sections 120A and 120B.

Sections 107 to 116: Punishes those who aid and abet killings, including culpable homicide.

Criminal acts committed by multiple people in service of a single goal are punishable under Sections 34 and 35.

Other provisions-

The Schedule Caste and Schedule Tribes Act, 1989, The Protection of Human rights Act 2006, The Protection of Women from Domestic Violence Act, 2005, Dowry Act, etc., are present to punish the offender, whoever commits the offence. Due to Casteism, there are many cases where the lower caste people have been tortured and killed for marrying a superior caste person.

Reforms Suggested

Prevention of Crimes in the Name of Honour and Tradition Bill 2010- According to a recent ruling by the Supreme Court, parents or Khap Panchayats cannot intervene in an adult couple’s decision to be married. The most recent decision confirms the Supreme Court’s 2010 directive to the central government to stop honour killing. There has been a proposal to amend IPC and remove the Khap panchayats.

Punishments and Penalties

The convict is awarded death penalty or imprisonment for life and a penalty more than Rs. 5 lakhs. In situations of grave injury, the punishment is 10 years in imprisonment and a fine of Rs 3 lakh, or 3-5 years in prison and a fine of up to 2 lakhs.

Conclusion

Honour killing is a barbaric practice which is still happening in a nation like India which has been developing at a very fast pace. Due to the deep-rooted social evils, the practice is ongoing in rural areas mostly. These types of killings occur due to the disapproval of marriage with the lower community or a caste person or when the sexuality of the persons differs or due to the loss of virginity prior to marriage, and the list goes on.

For same-sex marriages and inter-faith and cultural marriages, it is important to notice that many people in rural areas are uneducated and still have outdated ideologies as they don’t have proper exposure. However, it is important to understand that even though a person’s interest differs from their family, they do not have the authority or the right to take the law into their hands and kill them. Being in a democratic country, people have a right to choose the way they want to live. People have a right to choose their sexuality and their partner as it is their choice. Article 21 doesn’t just mean mere breathing, it is a right to live with dignity and peacefully. The choices opted by the persons regarding their priorities in life do not affect anybody and no one has a charge over a major’s life.

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Citations

This article is written by K. Mihira Chakravarthy, 1^st year, B.A. L.L.B. student from Damodaram Sanjivayya National Law University (DSNLU).

Case Number

Writ Petition (Criminal) 67/2017

Equivalent Citation

(2018) 11 SCC 1

Petitioner

Nikesh Talwar Shah

Respondent

Union of India and Ors.

Bench

Justice R. F. Nariman

Decided on

November 23, 2017

Relevant Act/ Section

Article 21 of Constitution of India, 1949; Section 45, 65 and 71 of Prevention of Money Laundering Act.

Brief Facts and Procedural History

The constitutionality of Section 45 of the Prevention of Money Laundering Act was contested in an appeal. Two requirements are imposed by Section 45 before the bond can be issued. The court must be satisfied that the prisoner was not guilty of such a crime and that he would not conduct any crimes while on release. Additionally, the prosecution must have the opportunity to oppose any motion for bail.

Judicial History

In Hussainara Khatoon v. Bihar State,¹ the Supreme Court was presented with the issues of several sub-treaties whose incarceration periods surpassed the incarceration periods required for the crimes against them. These sub-treaties made up 80% of the jail population. Following, Maneka Gandhi v. Union of India², the Court ordered the release of individuals whose prison terms had surpassed the sentence terms for their offences, in accordance with Article 21. In Mantoo Majumdar v. State of Bihar,³ the Supreme Court upheld the accused’s right to personal liberty once more and ruled that the petitioners should be released on their bail and without any sort of security because they had been imprisoned for six years while awaiting trial.

Issues before the Court

1. Whether Section 45 of the Prevention of Money Laundering Act, 2002 is unconstitutional or not?

The Decision of the Court

The senior attorney, Shri Mukul Rohatgi, argued that Section 45 of the PMLA is manifestly arbitrary, discriminatory, and in violation of the petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution when it imposes two additional conditions before the granting of the bond. He further stated that the goal was not to refuse bail to people charged with the offences listed in Part B above and that doing so would be discriminatory and a violation of Article 14 of the Constitution because it would amount to treating ‘unequals’ identically.

Additionally, according to skilled senior counsel, the three-year threshold mentioned in Section 45 of the 2002 Act is by itself arbitrary because it only refers to the predicate offence and not to the money laundering offence itself. Regarding the 2002 Act, there is no requirement for the categorization based on the quantity of money that is laundered, which might be a legitimate basis for classification. Furthermore, according to the experienced senior counsel, if the requirements of Section 45(1) are met at the bail stage, the defendants will be required to reveal their defense at a time when they are unable to do so since they were arrested and weren’t given bail at the beginning itself.

The Supreme Court took into account the discrimination brought about by (a) the classification of the offences under Section 45(1) and (b) the application of Section 45(1) to diverse circumstances with respect to the challenge under Article 14. The Supreme Court ruled that a classification based on the length of time spent in jail for a Scheduled Offence had no reasonable connection to the goal of the PMLA, which is to attach and reinvest significant sums of money obtained via criminal activity. Although the court believed that other serious crimes under the IPC (crimes with a maximum sentence of 10 years) that were not specifically mentioned in Part A could also be the source of the money or proceeds, a person accused of such a crime could still obtain bail without the need for an application of the impugned conditions.

Regarding the application of the impugned conditions, the Supreme Court, among other things, held that: Section 45(1) of the PML Act created a situation in which the same offenders in various cases might end up experiencing various outcomes in terms of the grant of bail, depending on whether or not Section 45(1) applied. This was deemed to be especially problematic because the decision to grant or deny bail had no bearing on the money laundering offence under the PML Act; rather, the denial of bail was based solely on the fact that the offence was being tried alongside the offences under Part A.

The contested conditions were arbitrary and discriminatory because they required the accused to prove that they were not guilty of “such an offence” and that they were not likely to commit “any offence” while out on bail. Even though they might demonstrate that they had good reason to think they were innocent of the money laundering charge, an accused was being denied bail for the Scheduled Offence based on the Impugned Conditions. A person might be granted anticipatory bail for the same offence of money laundering and the Scheduled Offence because the PMLA did not forbid the grant of one, but he would then be granted regular bail upon satisfying the conditions of the anticipatory bail.

The Supreme Court briefly addressed the challenge to the conditions under Article 21 after a lengthy discussion on the challenges to the impugned conditions based on Article 14, specifically whether the conditions, which reversed the presumption of innocence, violated the fundamental right to personal liberty. The impugned conditions, according to the Supreme Court, are “dramatic measures that make substantial intrusions into the fundamental right to personal liberty” and can only be supported on the basis of a “compelling state interest in confronting crimes of an exceedingly heinous kind.”

It may be important to note that the Supreme Court was not required to decide whether the contested conditions actually met the requirements of a “compelling state interest,” as it could ex facie invalidate the contested conditions on the grounds that they infringed the accused’s constitutional right to equality. Following the ruling in the Maneka Gandhi case⁴, Article 21 now provides protection not only from executive action but also from legislation that robs a person of his or her life and personal freedom.

While the Supreme Court’s decision, in this case, is significant and the inconsistent nature of the pre-bail conditions under the PMLA provided a compelling argument for their elimination, it may be worthwhile to speculate whether the Supreme Court would have reached the same conclusion regardless of whether the pre-bail conditions were constitutional (especially in cases involving economic offences).

It was clear that the Supreme Court could have reached no other judgement given the scheme of the Scheduled Offences under the PML Act. It is still unclear if an economic offence like money laundering requires severe or harsh provisions like the Impugned Conditions and whether the state has the authority to restrict an individual’s rights in such circumstances. Therefore, the Supreme Court did not specifically consider the justiciability of the pre-bail conditions, such as the Impugned Conditions, in the instance of economic offences.

It was contended that the phrase “there are reasonable grounds to believe that you are not guilty of such a crime” in Section 45 should be interpreted as the Court’s initial determination of a defendant’s responsibility. Second, the wise Attorney General asserts that when the bonus is generally provided concerning offences in general and referred to the State of UP through C.B.I. v. Amarmani Tripathi⁵ for this reason, the requirements stipulated in Section 45 (1) (ii) are there in a different form. The astute Attorney General claims that Section 45 is unarguable when read in accordance with the principle of harmonious construction. Its foundation was Section 24 of the PMLA, which reversibly shifts the burden of proof, and it heavily cited Gautam Kundu⁶.

In the case of individuals charged with fraud in connection with a company’s affairs, take into consideration the provisions of Section 212(6) of the Companies Act, 2013, which also foresees restrictions similar to the impugned conditions. It is highly unlikely that a constitutional challenge to such pre-bail conditions would be upheld on the basis that they are inherently excessive and unreasonable, especially in light of the Supreme Court’s prior declaration that “economic offences need to be viewed seriously and considered as grave offences affecting the economy of the country and posing a serious threat to the financial health of the nation.”⁷ As a result, it is currently unclear and pending court clarification whether the pre-bail requirements (similar to the impugned conditions) are legitimate and justiciable in the context of economic offences.

It was clear that the Supreme Court could have come to no other judgement given the (inaccurate) list of offences included in the PMLA Act. The question of whether economic crimes like money laundering required harsh or contentious conditions and if the state might restrict a person’s rights in such cases is still open.

Pre-bail conditions’ constitutionality was decided by the Supreme Court in the instant case, and inconsistent interpretations of their scope and applicability under the anti-money laundering law presented a compelling argument. It may be worthwhile to analyze if the Supreme Court would have deleted the conditions otherwise fiercely contested except for the ambiguity produced by the Amendment Act, 2012, given the finding about the legitimacy of the conditions prior to bail (particularly in economic crimes).

Citations

1. AIR 1979 SC 1360.
2. AIR 1978 SC 597.
3. AIR 1980 SC 846.
4. AIR 1978 SC 597.
5. (2005) 8 SCC 21.
6. (2015) 16 SCC 1.
7. Rohit Tandon v. The Enforcement Directorate, 2017 SCC online SC 1304.

This article is written by Sanskar Garg, a last-year student of School of Law, Devi Ahilya University, Indore.

Alliance Centre for Alternative Dispute Resolution (ACADR), Alliance School of Law is organizing an International Conference on “The Future of Alternate Dispute Resolution: Prospects and Challenges” on November 12. 

ABOUT

Alliance Center for Alternative Dispute Resolution (ACADR) is organizing an International Conference on “The Future of Alternate Dispute Resolution: Prospects and Challenges”.

Arbitration, Mediation, Negotiation, Conciliation, Lok Adalat, Settlement, etc. are the various methods for settling disputes which have received worldwide recognition and are applied successfully, as they settle disputes in a speedy and amicable manner.

ELIGIBILITY

The conference is open to academicians, students, researchers, practitioners, and anyone interested in the subject.

THEME

• Role of courts in International Arbitration. 
• Selecting an Arbitral Seat: Key Consideration. 
• Jurisdiction-specific issues in Arbitration. 
• Evidence in International Arbitration Procedure. 
• India as an International Commercial Arbitration Hub: The Challenges.
• Is Alternative Dispute Resolution a Privatized Justice? 
• Alternative Dispute Resolution and Criminal Justice System. 
• India’s instance on the International Centre for Settlement of Investment Dispute (ICSID) Convention in relation to Banking. 
• Need for Laws governing Mediation in India. 
• The emerging importance of Environment Social Governance (ESG) & its impact on International Arbitration. Cross Border Partnership and collaboration in International Arbitration. 
• The Role Diverse Bar Associations Play in Increasing DEI (Diversity, Equity, and Inclusion) in ADR. Arbitration and Technology: Blockchain Arbitration and Smart Contracts.
• Online ADR in India: Prospects 
• Pre-Institution mediation in India: Future prospects
• Comparison of Pre-Litigation Mediation in India with other countries and how other countries have mandated pre-litigation.

SUBMISSION GUIDELINES

• The paper should be in Doc./Docx. format.
• The paper must be in a single-column layout with margins justified on both sides.
• The sub-heading should be in font size 12, bold, and Times New Roman, left-aligned.
• The main text should be in font size 12, Normal, Times New Roman, 1.5 spacing, and justified.
• The length of a paper should not be less than 3500 words (excluding footnotes).
• All references must be in the form of footnotes with font size 10, Times New Roman, 1.0 spacing and should be according to the Bluebook 20th Edition.
• The submissions should not have more than a 15% Similarity Index. 
• All the submissions should be made via E-mail to acadr@alliance.edu.in.

PERKS

• Suggestions and inputs from Experienced and Learned Panelists;
• All the Paper Presenters shall be provided with an E-Certificate of Presentation;
• Awards will be given for Best Paper.
• Selected papers shall be published in an ISSN International Journal and ISBN Book with no additional Article Processing Charges (APC).

IMPORTANT DATES

• Submission of abstract: Aug 30, 2022
• Communication of Acceptance: September 5, 2022
• Registration & Payment of Fee: September 7, 2022
• Submission of Full paper: September 30, 2022
• Conference Date: November 12, 2022

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-Report by Aswati Sharma

The Hon’ble Supreme Court of India on Monday in the case of Varsha Garg vs State of Madhya Pradesh and Ors. ruled that Section 311 empowers the trial court to summon witnesses to arrive at a just decision.

The decoding registers, according to the bench of Justices Dhananjaya Y Chandrachud and AS Bopanna, are a pertinent evidence piece to establish the co-relationship between both the accused’s location as well as the cell phone tower. In this case, the appellant is the wife of an advocate who’d been brutally murdered outside his office on November 18, 2015, around 23:30 hrs. An FIR was filed under Section 302 read in conjunction with Section 34 of the IPC.

The CD which was produced during the trial was found to be corrupted hence an application was made to the trial court for the requisition of the copy CD which was available at the police station. An application was preferred for requisition of the said CD but this application was rejected by the trial court.

A Single Judge of the High Court granted the appellant’s petition to challenge the trial court’s order, noting that the CD was a crucial piece of evidence that was provided to all of the accused along with the charge sheet.

This order of the trial court was challenged before the High Court by the appellant under Section 482 CrPC dismissing the second application which has been called into question in these proceedings.

The submission urged by the Counsel of Appellant was that in any event, there was no bar in law to the filing of an application under Section 311 even after the closure of evidence.

The submission which has been urged by Counsel for Respondent is that given the bar contained in Section 301 CrPC, it is not open to the appellant who is the spouse of the deceased to pursue these proceedings.

Issues before the bench were:

While Section 301 limits the right of the private person to participate in criminal proceedings, the Court noted that Section 311 empowers the trial court to summon witnesses in order to reach a just decision. The State filed an application for the summoning of witnesses and production of the decoding register. As a result, Section 301’s prohibition does not apply. The court held in that context:

“―21 …Therefore, a reading of Sections 301 and 311 together keeping in mind a situation like the one on hand, it will have to be stated that the trial Court should have examined whether the invocation of Section 311 was required to arrive at a just decision. In other words even if in the consideration of the trial Court invocation of Section 301(2) was not permissible, the anomalous evidence deposed by PW-18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the appellant‘s application without actually relying on the wide powers conferred on it under Section 311 CrPC for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the counsel for the appellant can be usefully made.”

The Hon’ble Supreme Court allowed the appeal and set aside the impugned judgment and order of the High Court dated 8th April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13th November 2021 in Sessions Trial 227 of 2016 dismissed the application filed by the prosecution. The application was filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular.

-Report by Shagun Sharma

Delhi High Court dismissed the writ petition in the case of Jitinder Tiwar vs. Union of India and Ors. filed against the departmental proceedings. The bench consists of the HON’BLE CHIEF JUSTICE and the HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD.

FACTS

The petitioner was serving as a Sub Inspector of Police. He, along with one Om Prakash Ahlawat, was subjected to disciplinary proceedings. The allegations leveled against the petitioner and Om Prakash Ahlawat reveal that while posted at Police Station Paschim Vihar they detained Smt. Santosh Jain and Smt. Anita Jain along with her two minor children in the absence of any male family member of the family.

The action was taken by the petitioner as well as Om Prakash Ahlawat based upon a complaint filed by Smt. Meenu Jain. They had ignored the earlier complaint of Smt. Santosh Jain and her PCR calls, and action were taken against her. They were allegedly humiliated and threatened to vacate the house. Due to such treatment, Smt. Santosh Jain fell sick and she was hospitalized at Muni Maya Ram Jain Hospital, Pitampura. The Petitioner accompanied Smt. Meenu Jain to
Flat No. GH-9/149, Paschim Vihar in the absence of the owner Smt. Santosh Jain and her family, permitted her to take possession of the house by breaking the locks.

The petitioner also got an FIR registered under Sections 341, 506 and 34 IPC at Police Station Paschim Vihar against Smt. Santosh Jain and her family without proper verification. Based upon the complaint made by Smt. Santosh Jain, a charge sheet was issued on 12.11.2002 keeping in view the Delhi Police Establishment Punishment and Appeal Rules, 1980. The imputation of misconduct was issued against the Petitioner.

After examining the prosecution witnesses and the defense witnesses, the Enquiry Officer submitted its report in the matter. The disciplinary authority furnished a copy of the inquiry report to the petitioner as well as the other charged official. A final order was passed by the disciplinary authority on 23.11.2006. The disciplinary authority has inflicted punishment of forfeiture of 2 years of approved service permanently and entailing a proportionate reduction in pay of both Jitinder Tiwari (the present petitioner) and Om Prakash Ahlawat.

PETITIONER’S CONTENTION

The petitioner and the other charged official preferred an appeal in the matter and the appeal was dismissed by a speaking order. Then only the petitioner challenged the order of punishment and the co-charged official has not preferred any writ petition before the Tribunal. The petitioner stated that he has brought on record the entire evidence and the evidence does not establish the guilt of the petitioner. Learned counsel for the petitioner has also argued before this Court that the departmental inquiry was not completed within 3 months, as required under Standing Order Number 125/01, issued by the Commissioner of Police, Delhi and, therefore, the entire proceedings and the subsequent punishment order stands vitiated.

He has also argued that some of the statements of the prosecution witnesses which were recorded during preliminary
the inquiry were accepted and relied upon in the departmental inquiry. Learned counsel has also minutely scanned the evidence before this Court and it was vehemently argued that the complaint submitted by Smt. Santosh Jain was a concocted complaint and was only to harass and humiliate the petitioner and the other charged official.

COURT’S DECISION

The High Court relied on the judgment of the Supreme Court in the case of State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 wherein the scope of interference in departmental enquiries was discussed. The court observed:

“In the present case, the evidence on record establishes the guilt of the Petitioner and in absence of violation of principles of natural justice and fair play or any procedural irregularity, the interference by this Court does not
arise.”

The court held that the departmental enquiry was according to the procedure laid in Delhi Police Establishment Punishment and Appeal Rules, 1980. The writ petition was therefore dismissed.

–Report by Ojas Bhatnagar

The Kerela High Court dismissed a writ appeal in the case of Dr. R. SURESH vs ATHURASRAMAM N.S.S.HOMEO MEDICAL COLLEGE, wherein it was pleaded by respondents that restoration of the lecturer’s seniority cannot be done and his demotion is permanent in nature. The judgment was passed by JJ P.B Suresh Kumar and C.S Sudha.

Petitioner’s Contention

The petitioner contended that his seniority should be restored. The advocates on behalf of the petitioner stated that restoration of the seniority is the petitioner’s right and there is no such provision that states that his seniority cannot be restored. The provisions the respondents have used to refer to this are not applicable to the petitioner. The statutes mentioned by the respondents (under Chapter 4 Statute 35 B of the Mahatma Gandhi University Statutes, 1997) only apply to the non-teaching staff of the college and the petitioner does not fall under this category. If any action were to be taken, it should have been taken under Statute 73 of Chapter 45. And this does not even mention that the seniority list is permanent in nature. The petitioner, therefore demands that his seniority be restored to the original position that he was holding at the time he was punished as 6 months have passed.

Respondent’s Contention

The respondent contends that the arguments given by the petitioner are unarguable. The advocates on behalf of the defendant argued that the statute mentioned by the respondent (Statute 73 of Chapter 45) does not specify that
the punishment of reduction in seniority is temporary in nature or it is restored after the passing of 6 months. The first respondent (College Chairman) also says that if the reduction in rank is not permanent, it does not seem like a
punishment at all.

DECISION OF THE COURT

The issue found by the court was whether the reduction in rank is permanent or temporary in nature. The court found that none of the given provisions by both sides solves this question. The court then refers to Mahatma Gandhi University Act, 1985 (The Act) and the Statutes. The order under which the lecturer was demoted was passed under Statute 35 B(v) in Part III in Chapter 4 of the Statutes and in that there is no mention of a definite term for a reduction in seniority ranks. But a proviso to clause (v) says that the term of reduction is permanent in nature. However, this only applies to the non-teaching staff of the college. Chapter 45 Part D of the statutes deals with disciplinary action against teachers of private colleges but Statute 73 of this chapter does not specify whether the reduction in rank is permanent or for a fixed period. In Section 99, sub-sections (1) and (2) tell us that the Kerela University Act, 1974 ceases to apply where the jurisdiction of Mahatma Gandhi University extends. The provisions of the Kerela University Act apply to those areas where there are no provisions and it continues to apply until new provisions are not brought about.

Since the statutes do not mention the period of the penalty imposed, the Kerela University Act, 1974 is referred to. Chapter 3, Statute 16 deals with disciplinary procedures against teachers of universities. Chapter 4 deals with the terms and conditions of non-teaching staff and there it clearly mentions that the reduction in ranks should not be less than 6 months if the period is not specified. The esteemed judges convey that Statute 73 in Chapter 45 of the statutes which
applies to teachers does not specify the duration.

The court observed:

“…..Statute 73(iv) in Chapter 45 of the Statutes, applicable to teachers does not specify the period for which the penalty of reduction can be imposed. This makes it apparent that as per the scheme of the Act and the Statutes, the disciplinary authority has been given the discretion to limit the reduction to a particular term or to make it permanent. Here the disciplinary authority has exercised its discretion”

The writ appeal was found to be without merits and hence dismissed.

–Report by Nistha Sahoo

Kerala High Court on Monday approved the bail in the case of Vishnu vs the State of Kerala. Justice Bechu Kurian Thomas delivered a bail order for Vishnu sanctioning conditions in accordance with it. The petitioner was charged with the crime of rape against a minor.

PETITIONER’S CONTENTION:

The petitioner contented the entire prosecution’s allegations of rape to be fallacious and the incident to be fictitious.
The learned counsel, Sri Manu Harshakumar lashed out against the allegations by putting forth the disapproval of calling the victim a minor. He also added that the victim herself admitted the fact that her workplace i.e., the spa center encouraged illicit activities.

Defending one’s own client, petitioner counsel submitted that, on the verge of this matter, the accused is being the scapegoat. He solicited that further detention of the petitioner is inequitable.

RESPONDENT’S CONTENTION:

The respondent contended that the petitioner is alleged to have committed a heinous crime against a minor and
he ought not to be dismissed on bail. The learned Public Prosecutor, Smt. M.K. Pushpalatha claimed that releasing the petitioner on bail would be a prejudice against the legitimate investigation. She exclaimed that there is the probability of intimidation of witnesses and the possibility of the petitioner influencing them as well.

DECISION OF THE COURT

The High Court examined the victim’s statement as well as the medical report. With due regard to the circumstances stated under Section 164 of Cr.P.C., Hon’ble Justice Bechu was satisfied with the contentions raised by the petitioner’s counsel. It was approved that the continued detention of the petitioner was unwarranted. The investigation has reached a final terminal therefore the petitioner is entitled to be released on bail. The court put forth some conditions:

1. Petitioner shall be declared on bail provided a bond for Rs50000/-.
2. The Petitioner must confront the Investigating Officer on demand.
3. The Petitioner ought not to try to intimidate the witnesses; nor shall he tamper with the available evidence or contact the victim or her family members.
4. Petitioner must not commit any similar offense while he is on bail.
5. Petitioner should not leave India without the permission of the Court having jurisdiction.

The bail application was allowed.

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