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Monday, December 26, 2011

cheque bounces cases - India- proceedings for appearance of accused- whether any personal exemption from appearance can be granted by magistrate court?

Cheque bounce cases: The question of granting exemption from the personal appearance of the accused in Cheque bounce cases (offences under section 138 of Negotiable Instruments Act) is always a changing stage. For some time, the Higher Courts directed the magistrates to grant exemption as a matter of right. But later the Supreme Court observed it is the discretionary power of the magistrate. 
The court shall take in to consideration that, granting of persona exemption shall not affect the proceedings of the case.   It is further observed that, the insistence of the personal appearance of the accused shall not cause enormous suffering on the accused.

Friday, December 23, 2011

police arrest - private complaint - CRPC- Can an accused be arrested forthwith in cases of forwarded cases from the Magistrate court under section 156(3) of Crpc by the Police?

Circular from Kerala Police Director General-

There have been instances of improper investigation of cases registered under S.156 (3) of the Code of Criminal Procedure, 1973 reported from various parts of the State. The fact of registration can be used deliberately to manipulate a situation where by the accused are unnecessarily arrested. The investigation of such cases can be used to settle financial disputes, under coercion or the threat of arrest.
In this regard, the following instructions are issued for strict compliance:

1) In the event of a Magistrate directing the Police, under S.156 (3) Cr.P.C, to investigate a case, the Station House Officer concerned, shall forthwith register the case.
2) The Case should be investigated by an officer not below the rank of a Sub Inspector.
3) The arrest of the accused in such cases shall only be made after due investigation, and, after the Investigating Officer is fully convinced of the complicity of the accused in the crime and the need to arrest him. The need for the arrest shall be substantiated with reason in the Case Diary.
4) Prior information both in writing and personally over phone may be given to the immediate supervisory authority by the Investigating Officer, before proceeding with such arrest.

Thursday, December 22, 2011

professional arbitrators - retired judges from judiciary

The service of retired judicial officers are available for acting as professional arbitrators and mediators.

Contact: 9447200500.

can a mosque or church or temple constructed if the local people objected? is there any special sanction obtained as per building rules for construction of place of worships?

The Section 235A of the Kerala Panchayath Raj Act 1994 gives power for the Government to make Rules in connection with the Construction of buildings. It read so:
235A. Building Rules:
(1)          The Government may make rules-....
(2)          (b)     No site shall be used for the construction of a building intended for public worship, if the construction thereon will wound the religios feelings of any class of persons.

The Rule 7(8) provisio of The Kerala Panchayath Building Rules 2011. It read so
Rule 7(8): 
In the case of an application for development or redevelopment of any land within the Security Zone, the Secretary shall consult the District Collector concerned before permission is granted.  The District Collector, after getting specific recommendation from the Director General of Police, shall furnish his reply. The objection if any raised and/or restriction and/or regulation if any suggested by the District Collector shall be complied  by the Secretary while issuing the permit.   
       Provided that in the case of development or redevelopment for religious purpose or worship, prior approval or clearance or permission and concurrence as the case may be, of the District Collector concerned shall be obtained and also the conditions stipulated in the Manual of Guidelines to Prevent and Control Communal Disturbances and to Promote Communal Harmony which is in force have to be complied with. Applications for renovation without involving additional built-up area or structural alterations of existing buildings for religious purpose or places of worship can be considered by the Secretary after informing the District Collector in form in  Appendix - N duly filled by the applicant and verified by the Secretary. The permit shall be issued only after the receipt of the concurrence  by the District Collector.  

Wednesday, December 21, 2011

food adulteration cases- prevention of food adulteration Act- impleading manufactuers and dealers - question of successive warranty.

1990 (1) KLT 572, Chandak V. Food Inspector the division bench of Kerala Honourable Court held that, successive warranties are allowed as per the provisions of PFA Act. This would help the poor vendors to implead their successive dealers and distributors. 

1979 Crl L J  969, Municipal Corporation of Delhi V. R Sahai and Other the three Bench decision of the Apex Court clarifies that, the jurisdiction under section 20A of the PFA Act can be exercised only during the trial.

2000 SCC (Cri) 1, Omprakash Shivprakash V. K I Kuriakose and Others that, the power to implead a dealer, Manufacturer or distributor under Section 20A of Prevention of Food Adulteration can neither be invoked before the stage of adducing evidence in the trial nor after the conclusion of the trial. It is further held that, the ‘trial’ for the offences under the Act begins when under section 251 Crpc the Magistrate asks the accused whether he pleads guilty or not.

2010 2 KLT 206 (Ayankali Nadar & Sons V. Sivasankara Pillai) It is stated in the said decision by a Single Bench of High Court of Kerala that, only if there is evidence, then only the person can be impleaded as per section 20A of PFA Act.

Thursday, December 15, 2011

Role of police in civil cases - civil disputes and police interference - DGP circular, Kerala Police.

Can mutation of the property done during the pendency of revenue recovery proceedings?

The mutation means transfer of registry subsequent to the sale of the property. When a sale deed is executed in Sub Registrars Office, naturally the ownership need also be changed in the Mutation Register kept in Village Office.
Usually, if an attachment or recovery proceedings is initiated on the subject matter, the Village Officers hesitate to effect the transfer in the registry. The matter is distinguished by Kerala High Court on a couple of cases, by Js Antony Dominic. It was held that, the effect of mutation in the name of new owner cannot be stalled for the reason that the revenue recovery proceedings are pending. It is further clarified in the order that, even if mutation is effected, the revenue recovery proceedings can be initiated against the new owner.!

professional arbitrators for mediation and conciliation and arbitration- retired judges, judicial officers etc.

Arbitration is one the relevant method of settlement of disputes, rather than longing in courts in long queue. The firms and companies can invoke arbitration clauses in their daily contracts and in the event of dispute, they can start proceedings through arbitrator. The award of an arbitrator is having same footing of that of a decree of civil court. The remaining proceedings is only for filing execution on the basis of the award of the arbitrator. 

Tuesday, December 13, 2011

Revaluation of answer sheets - speedy valuation is a right guaranteed under the Constitution of India. How to get revaluation results easier--earliest?

The revaluation of answer sheets are always a hurdle for the students in Kerala, especially those who are studying for BTech Degree Courses. The undue delay in evaluation diminishes the opportunity of students to get placement in 7th and 8th Semesters. Most of the companies offer opportunities, with a chance to clear the back log on previous semesters. But even after appearing supplementary examinations and even some times applying for revaluation, the undue delay from the University is really a head ache for the students.
However, those who can afford a Writ Petition in High Court of Kerala are able to get the results in a time bound manner. The right to get the revaluation result in time is the fundamental right of a student.

Thursday, December 1, 2011

Compassionate appointment - retirement on medical grounds

The question whether Compassionate appointment can be denied to the dependents of those who retire from service on medical grounds again mooted in the Central Administrative Tribunal, Ernakulam Bench.
Earlier an official letter dated 29-5-1992 was quashed by the CAT full bench, in OA 220/98 dated 8-11-01. Subsequently in another case,  a division bench of CAT took the similar stand.
But the department again relied on the non est order which was already quashed by the CAT. Later this stand was confirmed by the High Court of Kerala vide order dated 28-9-04. Now again in another petition, CAT vide order dated 1-12-2011 observed that, the department again relied on the order which was already quashed. The CAT directed the department to circulate the quashed order within one month or pay a cost of RS 5000 to the Applicant.