October 25, 2021

We will discuss following issues in this write-up What are the Minister’s general power to review the working of the investigating agency and to give broad policy directions regarding the functioning of the agencies ? What is oath and what are constitutional provisions? Consequences of breach thereof? If Minister exceeds power, does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Can they approach Court under Article 226 or Article 32 of the Constitution of India? Let us first learn provisions of the Constitution of India: CONSTITUTIONAL PROVISIONS For State the Constitution provides 159. Oath or affirmation by the Governor.—Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most Judge of that Court available, an oath or affirmation in the following form, that is to say— ―I, A. B., do swear in the name of God that I will faithfully execute the solemnly affirm office of Governor (or discharge the functions of the Governor) of ………(name of the State)and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of ..……(name of the State).‖ Under Article 164 every minister has to take oath before entering into his office it says: 164. (1) Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor…. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule… Article 193 provides for penalty Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.—If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State. Form of oath of secrecy for a Minister for a State:— ―I, A.B., do swear in the name of God that I will not directly or indirectly communicate or reveal solemnly affirm to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of ………………..except as […]

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October 14, 2021

 A WARNING BELL TO SOCIETY  Since corona started, there is also a trend of increase in cases in the consumption of drugs. The film industry is said to be a hub of drugs. Is it that, its consumption started due to corona? The answer is No. It was always there, butfew decades back,  maybe the social set-up was such youngsters were taught by elders, grand parents and parents to stay away from drugs, cigarettes, and wine. The three “W” s which is the epic centre of crime. “ Wine, Woman and Wealth”. But it was present consistently. There are many reasons for becoming a drug addict. The first is psychological.  To venture something new , another is curiosity, mostly a teenager try during college if got friends with such people,  to rich person kids, its necessary to stand in the competition, you need to show that as a star or a star kid one is very bold and smart,  if you want to survive in the profession. There is also a syndicate working to get students addicted, and, if NDPS seizes huge consignment of drugs and seizes drugs of different persons in possession of drugs and also prominent persons with different kinds of drugs entire syndicate comes in defence, BUT, it’s a warning bell for society. Today if you protect the druggies tomorrow it may hound you and this problem may knock on your doors too. Those who get one addicted, also use them for Drugs and its easy for them to exploit for commission of crime. For which we need to know the law and consequences. This blog is an attempt to explain different cases in very simple language which a layman can understand. WHY LAW OF NDPS? In Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under: “24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37” In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:­ “7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits the murder of one or two […]

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JUDICIAL ACTIVISM AFFECTING ORIGINAL SCOPE OF DUTIES? An analysis based on Article 138 of the Constitution :

May 15, 2021

My Quote: We must consider a person whose money and land is blocked in litigation dies everyday. Article 138. Enlargement of the jurisdiction of the Supreme Court (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer (2) The Supreme Court shall have such further jurisdiction, and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court Poetic Justice: English drama critic Thomas Rymer coined the phrase in The Tragedies of the Last Age Consider’d (1678) to describe how a work should inspire proper moral behavior in its audience by illustrating the triumph of good over evil. The demand for poetic justice is consistent in Classical authorities and shows up in Horace, Plutarch, and Quintillian, so Rymer’s phrasing is a reflection of a commonplace. Philip Sidney, in The Defence of Poesy (1595) argued that poetic justice was, in fact, the reason that fiction should be allowed in a civilized nation. But Indian Civilization believes in Karma which was much much prior to theory of poetic justice: And here they say that a person consists of desires, and as is his desire, so is his will; and as is his will, so is his deed; and whatever deed he does, that he will reap. : Brihadaranyaka Upanishad, 7th century BCE Judicial Activism: During #pandemic #Covid19India Judiciary played active role. As such over last 15 years there is more judicial activism. When we change or expand horizon we need more efficiency, professionalism, workforce, intellect, reduction in procedure and process, and also with today’s time we need modern technology. We have in last decade seen Judiciary calling #AirChiefMarshal for questioning on #Rafaeldeal We saw courts ordering change in 1000 years custom and usage in case of #shabarimala At the same time #NJAC was struck down. There is Judicial activism seen by way of PILs and suo motu cognizance. However the fundament duty of Judiciary has seen serious backlog. May it be suit, appeal or execution. We cannot value the total amount stuck in financial  recovery cases,  and land cases pending in various courts across India. Common citizens discuss but do not debate because of scare of law. I am referring these sequences of events because recently Bombay High Court said if people die of lack of oxygen it’s violative of Article 21. What does it provide? Article 21 in The Constitution of India 1949 gives  Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Backlog of Cases violate of Constitutional Rights? there is report which requires serious considerations even by those who are executing duties under oath. https://prsindia.org/policy/vital-stats/pendency-cases-judiciary which says: In 2016,  compared to 2006, number of cases disposed of increased approximately from 57,000 to 76,000  in Supreme Court;  from 14.4 lakh cases to 16 lakh cases in High Courts and from […]

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Statement under S/164 of Cr.P.C, Eye witness and Medical Opinion when accepted and rejected? Is Homicide case maintainable despite contradiction with circumstantial evidence?

October 4, 2020

In Sushant -Disha murder case this question has arisen. Lets see first provision of Section 164 of Cr.PC Section 164 in The Code Of Criminal Procedure, 1973 164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.  (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-” I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate”. (5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. Confession: In Narayanaswami v. Emperor (1939) 66 I.A. 66,  it was observed that, It is a well accepted rule regarding the use of confessions and admissions that these must either be accepted as a whole or  rejected as a whole and that the court is not  competent to  accept  only the inculpatory part  while  rejecting the exculpatory part as inherently incredible. Emperor v. Balmukand (1930) I.L.R. 52 All. 1011, followed Palvinder Kaur vs The State of Punjab […]

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Suicide – Power of State and Center to transfer matter to CBI – Obligations of Courts to protect Fundamental Rights

August 8, 2020

With alleged Suicide by Sushant Singh Rajput many discussions and debates and view point is expressed by media and other platforms on Power of Central Government to transfer the case to CBI when State Police fails to investigate collect evidence for free and fair trial in the matter. Let us discuss various aspects of this issue in its legal conspectus. Role and Rights of Accused in investigation Union of India and Anr. v. W.N Chadha (1993) Supp. 4 SCC 260, is a judgment which states that the accused has no right to participate in the investigation till process is issued to him, provided there is strict compliance of the requirements of fair investigation Likewise, the judgments in Smt. Nagawwa v. Veeranna Shivalongappa Konjalgi & Ors. (1976) 3 SCC 736, Prabha Mathur and Anr. v. Pramod Aggarwal & Ors., (2008) 9 SCC 469, Narender G. Goel v. State of Maharashtra (2009) 6 SCC 65 and Dinubhai Bhogabhai Solanki v. State of Gujarat & Ors. (2014) 4 SCC 626, which state that the accused has no right to be heard at the stage of investigation, has very little to do with the precise question before us. All these judgments are, therefore, distinguishable. Duty of Police to file F.I.R In Lalita Kumari vs. Govt. of Uttar Pradesh,the question before the Supreme Court was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same. It was held that: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes […]

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