Fraud claim can reconsideration by Same MAC Tribunal

आज मैं मोटर दुर्घटना दावा मामले में कदाचार, धोखाधड़ी, झूठे दस्तावेज जमा करने और गैर-आकस्मिक चोटों में झूठे सबूत बनाने और पुलिस के साथ झूठी शिकायत दर्ज करने के बाद  प्राप्त पुरस्कार- निर्णय पर चर्चा करूंगा।

मोटर दुर्घटना मुआवजे के आवेदन में फर्जीवाड़े, फर्जी दस्तावेज, दुर्घटना मुआवजा दिलाने के लिए झूठी शिकायतें  की जा रही है.

पिछले कुछ वर्षों में फर्जी मोटर दुर्घटना दावों की मात्रा में वृद्धि हुई है। कुछ दावे धोखे से दायर किए जाते हैं और बीमा कंपनी की लापरवाही के कारण, ऐसे फर्जी मामले किसी विशेष जांच से पहले रिपोर्ट नहीं किए जाते हैं। और बीमा कंपनी पर को ऐसे कलेईम में पैसा चुकाना पडता है।

भले ही इस तरह के झूठे मुआवजे के आवेदन, धोखाधड़ी द्वारा प्राप्त पुरस्कार-निर्णय को आमतौर पर उच्च न्यायालय में चुनौती दी जाती है, जिस कंपनी के खिलाफ नामदार उच्च न्यायालय में निर्णय दिया गया होता है उसी आदेश का 30 प्रतिशत या कम ज्यादा रकम  जमा करने का आदेश अपील दायर करते है।और उक्त राशि को ट्रिब्यूनल में जमा किया जाना होता है। जबकि कई मामलों में, धोखाधड़ी के ऐसे मामलों में पूरी राशि की प्रतिपूर्ति बीमा कंपनी द्वारा आवेदक को की जाती है क्योंकि कई में मामलों में, वीमा कंपनी को धोखाधड़ी पुरस्कार के दस्तावेजों के सत्यापन या प्रामाणिकता का भी पता नहीं था।

अब ऐसे मामलों में गुजरात हाईकोर्ट ने अभी अभी जजमेन्ट दीया है जिससे कंपनी को काफी राहत मिलती है.

अब मैं उस फैसले पर चर्चा करूंगा जिसे ट्रिब्यूनल में ही इस तरह के फर्जी फैसले के खिलाफ चुनौती दी जा सकती है।

लेकिन इन सभी मामलों में निर्णय के बाद भी मोटर दुर्घटना दावा न्यायाधिकरण गुजरात उच्च न्यायालय द्वारा इस तरह के एक महत्वपूर्ण फैसले को रिमांड कर सकता है, अब मैं आज इसके बारे में चर्चा करूंगा।

लेकीन अभी ईन सभी कीस्सेमे एवोर्ड होनेके बाद भी मोटर एकसीडन्ट कलेईम ट्रीब्युनल अपना दीया हुवा एवोर्ड फीरसे विचाराधीन करखे रीमान्ड कर शकता है एसा महत्व पूर्ण जजमेन्ट डो गुजरात हाईकोर्टने अभी अबी दीया ईसके बारेमें आजमें चर्चा करुंगा।

यदि दावेदार धोखाधड़ी करता है तो मोटर दुर्घटना दावा न्यायाधिकरण अपने ही आदेश वापस ले सकता है: गुजरात हाईकोर्ट

यदि दावेदार धोखाधड़ी करता है तो मोटर दुर्घटना दावा न्यायाधिकरण अपने ही आदेश वापस ले सकता है: गुजरात हाईकोर्ट

गुजरात हाईकोर्ट ने स्पष्ट किया कि जब मोटर दुर्घटना दावा न्यायाधिकरण ( Motor Accident Claims Tribunal) के समक्ष मामले में दावेदार पक्षकार ट्रिब्यूनल के साथ धोखाधड़ी करता है तो ट्रिब्यूनल को अपना आदेश वापस लेने का अधिकार है, जिसके द्वारा उसने राहत दी थी।

जस्टिस गीता गोपी ने कहा,

"पुनर्विचार आवेदन सीपीसी के आदेश 47(1) के तहत आने से बच जाएगा, क्योंकि यह रिकॉर्ड पर स्पष्ट त्रुटि है। अन्यथा, जैसा कि ड्राइवर और मालिक द्वारा धोखाधड़ी की गई तो ट्रिब्यूनल के पास अपने आदेश को वापस लेने की शक्ति है।"

बीमा कंपनी द्वारा वर्तमान आवेदन दायर किया गया था, जिसमें ट्रिब्यूनल के उस आदेश को चुनौती दी गई थी जिसमें उसकी पुनर्विचार याचिका को खारिज कर दिया गया था। इस याचिका में दावेदार के पक्ष में इस आधार पर अवार्ड वापस लेने की मांग की गई थी कि दावेदार का दुर्घटना की तारीख पर बीमा नहीं किया गया था और उसने जाली बीमा दस्तावेज बनाए थे।

हाईकोर्ट ने कहा कि ट्रिब्यूनल ने पुनर्विचार आवेदन को खारिज कर दिया, क्योंकि बीमा कंपनी ने दावा याचिका में अपना लिखित बयान भी दाखिल नहीं किया। इसके अलावा, विवादित दस्तावेज को मामले में साक्ष्य के रूप में पेश नहीं किया गया, इसलिए पुनर्विचार आवेदन खारिज कर दिया गया।

कोर्ट ने दावा न्यायाधिकरण को साक्ष्य के स्तर से दावा याचिका पर नए सिरे से विचार करने का निर्देश दिया।

अनीता बनाम रामबिलास मामले पर भरोसा करते हुए कहा गया:

"यदि यह साबित हो जाता है कि पक्षकार में से एक ने अदालत में धोखाधड़ी की है तो केवल सीपीसी की धारा 151 के तहत पुनर्विचार याचिका पर सुनवाई की जा सकती है।"

ऑर्डर डाउनलोड करने के लिए यहां क्लिक करें

https://drive.google.com/file/d/1COjfWSvQMRiUZsfTrtBvFx2nVMTxbILy/view?usp=sharing

Transfer Orders Cannot Be Passed In Absence Of Vacancy, Must Show Place Of New Posting: Karnataka High Court

Read Full Judgment

The Karnataka High Court has directed the State government to ensure that if transfers are made after the period of general transfers, no request for transfers should be entertained or orders made unless there is a vacant place.

The Bench  observed,

"In the present case, none of the procedures are followed. Despite the observations by the Division Bench of this Court in M.Arun Prasad's case (supra) and also the Government, Circulars referred to above, time and again orders of transfer are being passed without showing places for posting."

"In the present case, as stated earlier, there was no vacant place while considering the representation of respondent No.6 to be transferred and posted in the place of the petitioner. It is also noticed that the case of respondent No.6 is on the basis of the letter of the Member of the Legislative Assembly. Nevertheless, the procedure requires to be followed."

Drawer Liable Even If Details Of Cheque Was Filled Up By Some Other Person; Handwriting Expert's Report Cannot Rebut Presumption U/s 139 NI Act: Supreme Court

Read Judgment

Negotiable Instruments Act, 1881 - Sections 138,139 - A drawer handing over a cheque signed by him is liable unless it is proved by adducing evidence at the trial that the cheque was not in discharge of a debt or liability. The evidence of a hand-writing expert on whether the accused had filled in the details in the cheque would be immaterial to determining the purpose for which the cheque was handed over. Therefore, no purpose is served by allowing the application for adducing the evidence of the hand-writing expert - The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by the drawer but by another person, this is not relevant to the defense whether the cheque was issued towards payment of a debt or in the discharge of a liability. 

The Supreme Court observed that a drawer of a cheque is liable even if the details in the cheque have been filled up not by the drawer, but by some other person.

The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert, the bench comprising Justices DY Chandrachud and AS Bopanna observed.

Referring to Section 139 NI Act, the Apex Court bench noted that a drawer who signs a cheque and hands it over to the payee is presumed to be liable unless the drawer adduces evidence to rebut the presumption that the cheque has been issued towards payment of a debt or in the discharge of a liability.

"For such a determination, the fact that the details in the cheque have been filled up not by the drawer, but by some other person would be immaterial. The presumption which arises on the signing of the cheque cannot be rebutted merely by the report of a hand-writing expert. Even if the details in the cheque have not been filled up by drawer but by another person, this is not relevant to the defense whether cheque was issued towards payment of a debt or in discharge of a liability."

Touching private parts of child will attract POCSO offence; absence of injury irrelevant: Bombay High Court

Read Full Judgment

The Bombay High Court recently held that touching private parts with sexual intent would be construed as sexual assault under the Protection of Children from Sexual Offences Act (POCSO Act).

"The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching a private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act." 

The Court ruled that the defence of the appellant that no injury was found on the survivor's body was irrelevant and, therefore, refused to interfere with the trial court's order convicting the appellant.

Judgment copies should be accessible, digitally signed; courts should avoid uploading scanned copies of judgments: Supreme Court

Read Judgment

The Supreme Court has asked Courts and tribunals to avoid uploading on their websites scanned versions of printed copies of their judgments [State Bank of India and anr vs Ajay Kumar Sood].

A Bench of Justices DY Chandrachud and AS Bopanna said that judicial institutions should ensure that judgment copies uploaded are accessible and signed using digital signatures.

"Courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies," the Court said.

The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose, the Court added.

"The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens." 

High Court Can Grant "Transit Anticipatory Bail" To Person Apprehending Arrest Even In Absence Of FIR: Gujarat HC

Read Order

The Gujarat High Court has made it clear that a person apprehending arrest can seek "transit anticipatory bail" so as to obtain time to approach the competent Court having territorial jurisdiction in the matter, even in the absence of registration of FIR.

A bench of Justice Nikhil S. Kariel observed,

"if for an offence of the like nature which had been committed within the State of Gujarat, this Court being competent to decide the application and being competent to grant anticipatory bail to the said applicants, in the considered opinion of this Court, it would also be competent for this Court to grant transit anticipatory bail in favour of the applicants even where there is no FIR filed against the applicants in a State other then the State of Gujarat and whereas the applicants have only projected reasonable apprehension of their arrest before this Court."

The bench heavily relied on the Bombay High Court's judgment in NK Nayar & Ors. v. State of Maharashtra & Ors., 1985 CriLJ 1887.

The observation was made while dealing with an application filed by the wife and father-in-law of one Jimit Shanghavi, who had committed suicide at his residence in Maharashtra and had left behind a note mentioning domestic disputes, resulting in depression.

The Applicants stated that while there was no FIR against them, the suicide note probably implicated them and thus, there was a reasonable apprehension of arrest. They sought transit anticipatory bail for a reasonable period of time to approach the Court in Maharashtra.

The APP opposed the application on the ground that transit anticipatory bail may not be granted where FIR was absent since as such there was no reasonable apprehension of their arrest.

Justice Karile, while reiterating that anticipatory bail can be granted without FIR, identified the main issue worth consideration as whether the High Court can grant protection to a person apprehending arrest in a different state in absence of FIR, till the hearing of the case is taken up.

Answering this question in the affirmative, Justice Kariel granted relief for 30 days and cautioned that if the Applicants failed to approach the competent court in Maharashtra, the transit anticipatory bail would automatically be cancelled. 

Provident Fund & Other Pecuniary Benefits Received By Legal Heirs Of Deceased Have No Co-Relation With Motor Accident Claim: The Jammu and Kashmir and Ladakh High Court

Read Judgment

The Jammu and Kashmir and Ladakh High Court have ruled that Provident Fund, Pension, Insurance, bank balance, shares, fixed deposits, etc., are all pecuniary advantages receivable by heirs on account of one's death but all these have no correlation with the amount receivable as compensation under the Motor Vehicles Act, a statute occasioned only on account of accidental death.

"The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It cannot be said that these amounts have accrued to dependents or legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/ dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of deceased in a motor vehicle accident."

The bench was hearing an appeal against an award passed by the Motor Accident Claims Tribunal, Kupwara on a Claim petition whereby the tribunal had directed the appellant Insurance Company to pay compensation in the amount of Rs. 32,43,212/- along with 7.5% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

The appellants challenged the award inter alia primarily on the ground that the tribunal had failed to consider that deceased was a government employee, working in the Forest Department as a Junior Assistant and posted in Forest Division, Kupwara, which implied that his legal heirs would be entitled to full salary for a period of seven years and, therefore, it was incumbent upon the Tribunal to take into consideration the said fact while assessing the payment of compensation, but this aspect was ignored by the Tribunal while passing impugned Award.

Adjudicating upon the matter Justice Koul observed that the deductions cannot be allowed from the amount of compensation either on account of insurance or on account of pensionary benefits or gratuity or grant of employment to kin of deceased. The bench underscored.

"The claimants/ dependents are entitled to just compensation under the Motor Vehicles Act as a result of death of deceased in a motor vehicle accident. Thus, the natural corollary is that the advantage that accrues to the estate of deceased or to his dependents as a result of some contract or act which deceased performed in his life time cannot be said to be the outcome or result of death of deceased even though these amounts may go into the hands of dependents only after his death", the bench explained.

Deliberating further on the said proposition of law the bench observed that it is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased and they are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will get a substantial amount as pension and gratuity and these amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted, the court maintained.

In order to buttress the stand taken the bench found it worthwhile to record the observations made by Supreme Court in Helen C. Rebello (Mrs) and others v. Maharashtra State Transport Corporation and another, (1999) wherein SC held that any sorts of funds receivable by heirs on account of one's death have no correlation with the amount receivable under a statute occasioned only on account of accidental death. Such an amount will not come within the periphery of the Motor Vehicles Act, to be termed as pecuniary advantage liable for deduction and that family pension is also earned by an employee for benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by heirs after his death and heirs receive family pension even otherwise than accidental death.

Elaborating further the bench examined various SC judgements and reiterated that compassionate appointment in the case of death of an employee in harness, could also not be stated to be an advantage receivable by heirs on account of one's death and had no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointments may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with accidental death, the bench recorded.

"I have given my thoughtful consideration to the submissions made by learned counsel for respondents/claimants and do not find any merit in the Appeal as the Tribunal has given just compensation in favour of claimants and the same does not warrant any interference," the bench concluded while dismissing the appeal.

Triple Riding on motorcycle: Madras High Court sets aside compensation to deceased rider’s family

Read full Judgment

The Madras High Court recently set aside an order of the Motor Accident Claims Tribunal (MACT) granting compensation to the family of a man who died in a motorcycle accident while riding the motorcycle with two pillion riders [National Insurance Company Limited v S Muthu].

The court also reduces compensation awarded to the kin of pillion riders Taking note of the fact that three persons were on a motorcycle at the time of the accident, the Madurai Bench of the Madras High Court set aside the compensation amount awarded by a tribunal to the family members of the deceased rider and reduced the amount awarded to the family members of the deceased pillion riders.

Video cameraman Balu alias Balakrishnan was riding a motorcycle with lightman Moorthi alias Sathyamoorthi and still photographer Augustine on the pillion when the vehicle ran over a heap of sand on the road and hit a roadside tree. While Balakrishnan died on the spot, Sathyamoorthi and Augustine died on the way to the hospital. The Motor Accident Claims Tribunal in Tiruchi awarded compensation of ₹3.60 lakh to the family of Sathyamoorthi, ₹4 lakh to the family of Augustine and ₹4.50 lakh to the family of Balakrishnan. The National Insurance Company challenged the order. Justice R. Tharani observed that in the present case the rider of the two-wheeler had allowed two other persons to ride pillion. He hit the heap of sand on the road and then hit the tree. Balakrishnan was the tortfeasor and he had borrowed the vehicle from his brother. The claimants were not entitled to claim any compensation, the judge said and set aside the compensation awarded by the tribunal to the family of Balakrishnan.

The judge also reduced the compensation awarded by the tribunal to the families of Sathyamoorthi and Augustine to ₹1.80 lakh and ₹2 lakh respectively.

The judge permitted the insurance company to get a refund of the amount if it was deposited.

Three persons were travelling on a motorcycle at the time of the accident, which was against the rules. Hence, both the pillion riders contributed 50% to the negligence, the judge said and reduced the compensation amount by 50%.

Consumer forum directs Zomato to provide one free meal, ₹10,000 after On Time or Free order gets cancelled

Read Order

The State Consumer Disputes Redressal Commission (SCDRC) at Chandigarh recently directed food delivery service Zomato to provide a consumer one free meal and compensation of ₹10,000 for deficiency in service on not fulfilling its On Time or Free delivery scheme [Ajay Kumar Sharma v Zomato].

The order was made by President Justice Raj Shekhar Attri and Member Justice Rajesh K Arya who were of the view that such alluring advertisements or campaigns should not be published by Zomato if they cannot fulfil them.

"For deficiency in rendering service and for indulgence into unfair trade practice on the part of the respondents and also for suffering immense physical harassment & mental agony, the respondents are liable to compensate the appellant," it was recorded.

"The feelings of the appellant would have definitely got hurt, when he came to know about the cancellation of the order by the respondents on their own and at that time, how he would have, with heavy heart, told the same to his children who were already waiting for the meal at late night hours."

Allahabad HC Holds Police Officer Guilty Of Contempt For Violating 'Arnesh Kumar Guidelines', Sentences Him To 14 Day Imprisonment

Read Judgment /Order

The Allahabad High Court last week sentenced a police officer to undergo simple imprisonment for 14 days after holding him guilty of contempt for deliberately bypassing the mandate of the Supreme Court in the case of Arnesh Kumar v. the State of Bihar.

As Per the Arnesh Kumar judgment, the arrest should be the exception where the offence is punishable with less than 7 years imprisonment, and notice for appearance under Section 41A CrPC should be served on the accused in such cases instead of arrest. The arrest can be made in exceptional circumstances in such cases, but the reasons must be recorded in writing.

In the instant case, the contemnor [Chandan Kumar, Incharge of Police Station, Kanth, District Shahjahanpur] though served a notice under Section 41-A Cr.P.C. on the accused, but, he had willfully and deliberately recorded in the GD that the accused declined to accept the terms and condition of the notice.

In fact, he tried to give a communal colour to the matter by stating that since the accused belongs to a Muslim community and therefore, there was an apprehension of communal riots, if he was not arrested.

Contractor Cannot Be Blacklisted For Life; Blacklisting Order Without Specifying Period Unsustainable : Supreme Court

Read Full Judgment

Award of tender - Contractor cannot be blacklisted for life -One cannot be blacklisted for life. The order of blacklisting to the extent that it has not specified the period cannot be sustained.

The Supreme Court recently observed that a contractor cannot be blacklisted for life.

"One cannot be blacklisted for life. The order of blacklisting to the extent that it has not specified the period cannot be sustained", observed a bench comprising Justices Hemant Gupta and Vikram Nath.

Though the contractor approached the Allahabad High Court, no relief was granted. In further appeal, the Supreme Court interfered with the blacklisting order to the extent it did not specify the period.

"Since the order was passed way back in 2013 and the writ petition was dismissed on 05.09.2018, we deem it appropriate to exercise the powers under Article 142 of the Constitution to pass an order of blacklisting the appellant for a period of five years from the date the order was passed", the Court observed.

District Collectors Will Be Answerable For Accidents Caused By Road Potholes-Kerala High Court

Read Judgment

The Kerala High Court on 19-08-22 ordered that every future road accident caused by potholes would have to be explained by the District Collectors. It further directed that the officers under the various District Collectors - in their capacity as Chairman or Chairperson of the Disaster Manager Authority - ought to be instructed to visit and watch every road and ensure that all of them are kept free of disaster, lest another accident happens.

Justice Devan Ramachandran reminded us about the earlier Order that had been issued, whereby it was declared that the creation of potholes and craters were man-made disasters under the provisions of the Disaster Management Act, and there was a duty imposed upon the District Collectors to act within their statutory powers. It was added that the Court could not continuously prod the District Collectors in this matter.

"I hereby, direct the District Collectors to act proactively to avert 'man-made disasters' on the roads; and I caution them that every further accident will have to be explained by them in future", stated the order.

the Court added that the Government of India and in particular its Ministry of Road Transport and Highways, have a specific role to play, particularly with respect to the principles of Constitutional Tort, when somebody is killed or injured in an accident on the National Highway.

"They must inform this Court how we must respond to the cri de coeur of the family of a victim, or that of an injured, for having either been killed or put to danger because the Authorities vested with duties did not do it well or neglected it", it was observed.

Cheque Bounce Complaint Filed Before Expiry Of 15 Days From Date Of Receipt Of Notice By Drawer Is Not Maintainable : Supreme Court

Read Full Judgment

Negotiable Instruments Act, 1881; Section 138 - Complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause - Referred to Yogendra Pratap Singh vs Savitri Pandey (2014) . 

The Supreme Court observed that a cheque bounce complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque is not maintainable.

In this case, the accused received the notice on 8 November 2005, and the complaint was filed before the period of fifteen days was complete, on 22 November 2005. The Trial court acquitted the accused. But the High Court allowed the appeal filed by the complainant and convicted the accused.

"Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines "complaint". According to this definition, a complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque."

"As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the court of sufficient cause. Question (ii) is answered accordingly."

Hold In-Camera Trial In All Sexual Harassment Cases, Apart From Rape Cases; Disallow Questions On Sexual History : Supreme Court To Trial Courts

Read Judgment

Reiterating the importance of the Courts dealing with the victims of sexual crimes in a sensitive manner, the Supreme Court has issued a slew of directions to the trial courts to avoid agony and harassment for women who file complaints of sexual harassment.

The Court directed that in-camera trials should be allowed in all cases relating to sexual harassment. As per Section 327 of the Code of Criminal Procedure, in-camera trials are mandated only in rape cases. This ambit has been expanded by the Court.

Further, the Court issued directions to ensure that the cross-examination of the victim is carried out in a sensitive and respectful manner.

The bench comprising Justice D.Y. Chandrachud and Justice JB Pardiwala noted that legal proceedings tend to be more onerous for complainants of sexual assault as they are dealing with trauma and societal shame. Thus, the Courts had an important responsibility to appropriately handle such matters.

The Court ordered as follows :

It is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:

a) Allowing proceedings to be conducted in camera, when appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment/violence;

b) Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded;

c) Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Also allowing cross-examination to be conducted in a manner that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman;

d) Completing cross-examination in one sitting, as far as possible.

While underscoring the importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner, the court stated that–

"It is important for all courts to remain cognizant of the fact that the legal process tends to be even more onerous for complainants who are potentially dealing with trauma and societal shame due to the unwarranted stigma attached to victims of sexual harassment and assault. At this juncture, especially in cases where the police fails to address the grievance of such complainants, the Courts have an important responsibility."

The court relied upon the judgement in the case Aparna Bhat v State of Madhya Pradesh, where it was noted the criminal procedure was moulded in a manner to enable victims of sexual crimes to seek justice, in recognition of the gravity of sexual crimes and the need to handle such cases in an appropriately sensitive manner. Thus, it was the duty of the courts to facilitate the same.

Accordingly, in order to ensure that justice did not remain inaccessible, the court directed trial courts to deal with the aggrieved persons before them in an appropriate manner

In this case, the appellant, a yoga instructor alleged that the then Vice-Chancellor of the Institute touched her inappropriately at the Institute, in March 2019, upon which she disengaged herself and shouted at him. She also alleged that she had been threatened with discharge from service on having refused his demands. She lodged a complaint at the Police Station. After no action was taken, she also filed a complaint to the Superintendent of Police, not once but twice. However, no action was still taken and she moved to the Judicial Magistrate First Class under Section 156(3) of the CrPC. The JMFC directed the police to file a status report, however, the proceedings before the JMFC were delayed due to the onset of the Covid-19 pandemic.

Eventually, the JMFC came to the conclusion that, prima facie, "occurrence of the offence by the accused persons" was "shown". Nonetheless, the JMFC held that the case could not be decided without collecting evidence from the police and it did not appear just and proper to act on the case filed on behalf of the appellant under Section 156(3) CrPC. JMFC continued treating the allegations as a complaint and provided liberty to the complainant to examine witnesses under Sections 200 and 202 CrPC. This order of the JMFC was questioned by the appellant under Section 482 CrPC. However, the High Court dismissed the application on the ground that the JMFC was not under an obligation to direct the police to register the FIR and the use of the expression "may" in Section 156(3) CrPC indicated that the JMFC had the discretion to direct the complainant to examine witnesses under Sections 200 and 202 CrPC, instead of directing an investigation under Section 156(3). Accordingly, the appellant approached the Supreme Court, appealing against the High Court's order dismissing her application.

At the outset, the Supreme Court recognised that in cases alleging sexual harassment, sexual assault or any similar criminal allegation, wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. The court stated that due regard must be given to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint and that it may not be possible to arrive at the truth of the matter in the absence of such evidence. This would translate to the complainant being required to prove her case without being able to bring relevant evidence on record, which would be unjust. Thus, the court held that the JMFC must have exercised jurisdiction under Section 156(3) of CrPC to direct the police to investigate.

Married Daughters Entitled To Motor Accident Compensation For Parent's Death; Can't Discriminate Between Sons and Daughters : Karnataka High Court

Read full Judgment

The Karnataka High Court has said that even married daughters are entitled to compensation on all the heads from the insurance company on the death of their parent in an accident.

"This Court also cannot make any discrimination whether they are married sons or married daughters and hence, very contention that married daughters of deceased is not entitled to compensation cannot be accepted and the Court has to take note of the rationale behind in coming to the conclusion of even married sons and major sons are eligible to claim compensation and hence the married daughters also entitle for compensation on all the heads and not to limit only for conventional heads."

Rule Of Evidence To Prove Charges In A Criminal Trial Cannot Be Used While Deciding Motor Accident Compensation Claims: Supreme Court

Read Full Judgment

Motor Vehicles Act, 1988; Section 166 - Rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 - It has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. 

The court observed thus while allowing an appeal filed against a judgment of Bombay High Court which had set aside an award passed by the Motor Accident Claims Tribunal awarding a sum of Rs.8,90,000/- along with interest @7% p.a. The bench noted that the High Court set aside the award on the ground that neither the owner of the offending car nor the Insurance Company has examined the driver to prove that the offending car was not involved in the accident. Disapproving this approach, the bench noted the evidence on record and observed:

"We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of appellant No. 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."

Civil Court's Jurisdiction and Industrial Disputes Act -Supreme Court

Read Judgment

Industrial Disputes Act 1947 - Jurisdiction of civil court not ousted when the matter relates to correction of date of birth -Jurisdiction of the civil court is not ousted, as this is not a case relating to the enforcement of a right or an obligation under the Industrial Disputes Act, 1947.

A Bench of Justices Sanjiv Khanna and Bela S Trivedi reiterated the principles laid down in the Premier Automobiles case as follows :

(1) If the dispute is not an industrial dispute or does not relate to the enforcement of any other right under the Act, the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Industrial Disputes Act, 1947, the jurisdiction of the civil court is an alternative, leaving it to the election of the suitor concerned to choose his remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Industrial Disputes Act, 1947, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right which is sought to be enforced is a right created under the Industrial Disputes Act, 1947, such as Chapter VA, then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

The third and fourth principles are not applicable in the present case, the Supreme Court observed, in view of the above.

"In our opinion, the present case is not covered by principles (3) and (4) as the issue involved relates only to the correction of the date of birth. Jurisdiction of the civil court is not ousted, as this is not a case relating to enforcement of a right or an obligation under the Industrial Disputes Act, 1947. Equally, on merits, we find that the appellant is entitled to relief as claimed. The respondents have not been just and fair", the Supreme Court's order read.

This being the case, the Bench held that the appellant is entitled to back wages from October 1, 2007, to October 31, 2009, that is, the actual wages payable to the appellant, as if he had worked during that period.

Punjab & Haryana Bar Body Restrains 140 'Advocates' Allegedly Found With Forged & Fabricated Enrollment Certificates From Practising

The Bar Council Of Punjab and Haryana this week restrained 140 people who were practising law from appearing in any court of law after the bar body found them guilty of "possessing forged and fabricated enrolment certificates".

Coincidentally, all such persons were practising and appearing before the courts in the same district (Ludhiana) of Punjab. The bar body called it a scam and a classic case after it found them possessing forged and fictitious Enrollment Certificates (licence of Advocate) and practising law on the basis of said forged and fictitious licences.

The disciplinary committee of the Bar Council of Punjab and Haryana comprising CM Munjal, chairman, Harish Rai Dhanda, member, and Vikas Bishnoi, co-opted member, sent the list of such advocates to the Commissioner of Police, Ludhiana, for immediate action so that culprits may be booked for the said offence.

Madras High Court Orders Arrests Of Fake Advocate; Directs Publication Of His Photo In Newspapers To Find Out Clients Cheated By Him

Read Judgment

The Madras High Court recently ordered an enquiry against a fake advocate. The bench of Justice S Vaidyanathan and Justice AD Jagdish Chandra ordered the Commissioner of Police, Chennai City to depute an officer who shall register a case according to the law, arrest the fake advocate, and conduct a thorough investigation.

We hereby direct the Commissioner of Police, Chennai City Police to depute an Officer in the rank of an Assistant Commissioner of Police, Central Crime Branch (CCB), Chennai, who shall register a case in accordance with the law, arrest the 4th respondent for production of a fabricated document before this Court, conduct a thorough investigation, including his schooling and file a final report in this case.

The court also directed the investigating officer to widely publish the photograph of the man, both in Tamil and English dailies circulating in the State of Tamil Nadu to find out if any persons had been deceived by him. The Bar Association of Tamil Nadu and Puducherry was also directed to inquire about any pending complaint against the advocate.

This is indeed a case requiring registration of a criminal case and appropriate action needs to be taken against persons, who are involved in the fabrication of documents. Cases in the nature of job racketing and the creation of false documents have been mushrooming nowadays and such persons involved in the offences should be crushed with iron hands and they shall not be allowed to go scot-free. The conduct of the 4th respondent also amounts to interference in the administration of justice