Yankappa and another vs The State of Karnataka. Criminal Appeal 200020/2015. Decided on 16 October 2020. Justice Siddappa Sunil Dutt Yadav and Justice P. Krishna Bhat.

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344180/1/CRLA200020-15-16-10-2020.pdf

Relevant paragraphs: Moral conviction bondering on strong suspicion is not an option with the Courts and cases should be proved beyond reasonable doubt is a salutary warning given by the Hon’ble Supreme Court of India in Mousam Singha Roy and Others vs. State of W.B. – (2003) 12  SCC 377 and it is apt to refer to the following observation: “27. Before we conclude, we  must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.”

13. It is necessary to recall to our mind the prophetic observation of Hon’ble Mr. Justice Vivian Bose in the case of Kashmira vs. State of Madhya Pradesh AIR 1952 SC 159 as follows: “2. The murder was a particularly cruel  and revolting one and for that reason it will be necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law.”

14. Unless a judge trying a heinous offence does not administer a caution to himself, especially, when his moral sense of justice is seriously disturbed, he is likely to fall into an error inducing in him “an instinctive reaction against a dispassionate judicial scrutiny of the facts and law”.

15. Baron Alderson in his address to the jury in Reg. vs. Hodge entered a warning as follows: “10. The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” (Vide Hanumant,  Son  of  Govind   Nargundkar  vs. State  of  Madhya  Pradesh  (AIR  1952  SC 1952 – para 10).

16. A judge is required to be dispassionate. It may be a tall order; nevertheless, it is, and, should be his first creed. It is difficult to remain uninfluenced by impressions, passions, inclinations, predilections, tides, currents, events and even what is commonly regarded as “personal baggages” to which human mind is a normal habitat. The percipient and sage observation of B.N.Cardozo captures the essence of this problem. Says he: “I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge. .….. There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. ……. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men do not turn aside in their course  and pass the judges by. We like to figure to ourselves the processes of justice as coldly objective and impersonal. The law, conceived of as a real existence, dwelling apart and alone, speaks, through the voices of priests and ministers, the words which they have no choice except to utter. That is an ideal of objective truth toward which every system of jurisprudence tends. It is an ideal of which great publicists and judges have spoken as of something possible to attain. “The judges of the nation,” says Montesquieu, “are only the mouths that pronounce the words of the law, inanimate beings, who can moderate neither its force nor its rigor.”28 So Marshall, in Osborne v. Bank of the United States, 9 Wheat. 738, 866: The judicial department “has no will in any case….Judicial power is never effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law.” (The Nature of the Judicial Process: Benjamin N. Cardozo (Author): Ninth Indian Reprint 2011: Universal Law Publishing Co. Pvt. Ltd.).

17. A judge has no ‘will’ of his own. In  the calling of a judge his only ‘will’ is, only ‘choice’ he has is if that can be called one – to give force to the ‘cumulative effect’ of the evidence placed before him taking inspiration from the statutes applicable and settled precedents.

18. With due deference to the learned Sessions Judge, we feel it necessary to observe that he has precisely lapsed into the mental mould Baron Alderson so felicitously warned the learned brethren of the judiciary to guard against.

32. On a re-appreciation of the evidence on record, we are satisfied that there is nothing to support the conclusion arrived at by the learned Sessions Judge and he has entirely acted on hunches, instincts and conjectures which is impermissible in law. Therefore, the impugned judgment dated 31.12.2014 convicting the appellants for the offences punishable under Sections 302, 498-A read with Section 34 of IPC is liable to be set aside.

Compiled by S.Basavaraj, Advocate, Daksha legal.

Satish Chander Ahuja vs Sneha Ajuja, Civil Appeal 2483/2020. Decided on 15 October 2020. Justice Ashok Bhushan. Justice R. Subhash Reddy Justice M.R. Shah. Judgment link: https://main.sci.gov.in/supremecourt/2020/689/689_2020_37_1501_24378_Judgement_15-Oct-2020.pdf

While holding that “Shared household” in Section 2(s) need not be the joint family household or household or in which husband has a share and that wife can stay in the house of her in-laws, the Supreme Court has also expressed its concern about the lives of senior citizens i.e. mother in law and father in law. The Supreme Court has approved directions of the High Court in this regard.

Relevant paragraph: 83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughter-in-law is pitted against aged father-in-law and mother-in-law. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter-in-law. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties..

The High Court gave directions that where the wife specifically disputes the exclusive ownership rights of the in-laws over the suit premises notwithstanding the title documents in their favour, the Trial Court, while granting her an opportunity to lead evidence in support of her claim, will be entitled to pass interim orders on applications moved by the in-laws, directing the appellant to vacate the suit premises subject to the provision of a suitable alternate accommodation to her under Section 19(1)(f) of the DV Act, which direction would also be subject to the final outcome of the suit. The Supreme Court has also held that suit by father in law for removal of his daughter in law from his property is maintainable and that the pendency of proceedings under the D.V. Act or any order interim or final passed under the D.V. Act under Section 19 regarding the right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of the proceedings under the D.V. Act, 2005.

Compiled by S.Basavaraj, Advocate Daksha Legal

Mohd. Salim v. Shamsudeen, (2019) 4 SCC 130. Civil Appeal No. 5158 of 2013, decided on January 22, 2019.

Relevant paragraphs: 16. Before proceeding further, it is crucial to note that under Muslim law, there are three types of marriage—valid, irregular and void, which are dealt with in Section 253 at p. 342 of Mulla (21st Edn.): “A marriage may be valid (sahih), or irregular (fasid) or void from the beginning (batil).” The High Court, while dealing with the contention that the correct translation of the Arabic word “fasid” was “invalid”, and not “irregular”, and that therefore a fasid marriage was a void marriage, considered the changes over time in the interpretation of “fasid”. It would be worthwhile for us to refer to these changes as well. In the 6th Edn. of Mulla, at Sections 197, 199 and 200, fasid marriage is interpreted as “invalid”. So also in Sections 197, 199 and 204-A of the 8th Edn. of Mulla, fasid is stated to mean “invalid”. For instance, in the 6th Edn. of Mulla, Section 200 at p. 162, dealing with the difference of religion, reads: “(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman but with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. If he does marry an idolatress or a fire-worshipper the marriage is not void (batil), but merely invalid (fasid).”.

17. Section 204-A at p. 164 of the same edition deals with the distinction between void (batil) and invalid (fasid) marriage. It provides that a marriage which is not valid may either be void (batil) or invalid (fasid). A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage (fasid marriage) is described as one which is not unlawful in itself, but unlawful “for something else”, as here the prohibition is temporary or relative, or when the invalidity arises from an accidental circumstance such as the absence of a witness. Section 204-A(3) at p. 165 of the 6th Edn. of Mulla reads: “…Thus, the following marriages are invalid, namely—(a) a marriage contracted without witnesses (Sections 196-197);(b) a marriage by a person having four wives with a fifth wife (Section 198);(c) a marriage with a woman who is the wife of another (Section 198-A);(d) a marriage with a woman undergoing iddat (Section 199);(e) a marriage prohibited by reason of difference of religion (Section 200);(f) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried (Section 204).…”.

18. The reason why the aforesaid marriages are invalid and not void has also been provided later in the same paragraph. With respect to marriages prohibited by reason of difference of religion, it is stated thus: “… in clause (e), the objection may be removed by the wife becoming a convert to the Mussulman, Christian or Jewish religion, or the husband adopting the Moslem faith….”.

19. In the 10th Edn., a change has been made to the meaning of fasid marriage. In Section 196-A, valid, irregular and void marriages are dealt with. It reads: “A marriage may be valid (sahih) or irregular (fasid), or void from the beginning (batil).”

20. From the 10th Edn. onwards, fasid marriage has been described as an irregular marriage, instead of invalid, but there has been no change with regard to the effect of a fasid marriage from the 6th Edn. onwards. The effects of an invalid (fasid) marriage have been dealt with in the 6th Edn. of Mulla at Section 206 at p. 166, clauses (1) and (2) of which read: (1) An invalid marriage has no legal effect before consummation.(2) If consummation has taken place, the wife is entitled to dower [“proper” (Section 220) or specified (Section 218), whichever is less], and children conceived and born during the subsistence of the marriage are legitimate as in the case of a valid marriage. But an invalid marriage does not, even after consummation, create mutual rights of inheritance between the parties.”

21. In the 8th Edn. of Mulla, the effects of a fasid marriage have been dealt with in Section 206 at p. 173. As in the 6th Edn., it is stated that children conceived and born during the subsistence of a fasid marriage are legitimate, as in the case of a valid marriage. As noted supra, the same position has been followed in the subsequent editions also, except that fasid has been described as “irregular” from the 10th Edn. onwards rather than as “invalid”.

22. Irrespective of the word used, the legal effect of a fasid marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband. But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.

23. Evidently, Muslim law clearly distinguishes between a valid marriage (sahih), void marriage (batil), and invalid/irregular marriage (fasid). Thus, it cannot be stated that a batil (void) marriage and a fasid (invalid/irregular) marriage are one and the same. The effect of a batil (void) marriage is that it is void ab initio and does not create any civil right or obligations between the parties. So also, the offspring of a void marriage are illegitimate (Section 205-A of the 6th and 8th Edns. and Sections 205-A of the 10th Edn., and 266 of the 18th Edn. of Mulla). Therefore, the High Court correctly concluded that the marriage of Defendant 9 with Mohammed Ilias cannot be held to be a batil marriage but only a fasid marriage.

24. We find that the same position has been reiterated in the 21st Edn. of Mulla as follows. The distinction between void and irregular marriages has been dealt with in Section 264 at p. 349:“(1) A marriage which is not valid may be either void or irregular. (2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus, a marriage with a woman prohibited by reason of consanguinity (Section 260), affinity (Section 261), or fosterage (Section 262), is void, the prohibition against marriage with such a woman being perpetual and absolute.(3) An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus, the following marriages are irregular, namely:(a) a marriage contracted without witnesses (Section 254);(b) a marriage with a fifth wife by a person having four wives (Section 255);(c) a marriage with a woman undergoing iddat (Section 257);(d) a marriage prohibited by reason of difference of religion (Section 259);(e) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried (Section 263).The reason why the aforesaid marriages are irregular, and not void, is that in clause (a) the irregularity arises from an accidental circumstance; in clause (b) the objection may be removed by the man divorcing one of his four wives; in clause (c) the impediment ceases on the expiration of the period of iddat; in clause (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith; and in clause (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus, if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.”

25. The effect of an irregular (fasid) marriage has been dealt with in Section 267 at pp. 350-51 of the 21st Edn. of Mulla as follows: “267. Effect of an irregular (fasid) marriage.—(1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other “I have relinquished you”. An irregular marriage has no legal effect before consummation.(2) If consummation has taken place—(i) the wife is entitled to dower, proper or specified, whichever is less (Sections 286, 289);(ii) she is bound to observe the iddat, but the duration of the iddat both on divorce and death is three course [see Section 257(2)];(iii) the issue of the marriage is legitimate. But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife….”.

27. In Syed Ameer Ali’s Mohamedan Law also, the same principle has been enunciated. The learned author, while dealing with the issue of the legitimacy of the children, observed at p. 203 of Vol. II, 5th Edn.: “The subject of invalid marriages, unions that are merely invalid (fasid) but not void (batil) ab initio under the Sunni law, will be dealt with later in detail, but it may be stated here that the issue of invalid marriage is without question legitimate according to all the sects.For example, if a man were to marry a nonscriptural woman, the marriage would be only invalid, for she might at any time adopt Islam or any other revealed faith, and thus remove the cause of invalidity. The children of such marriage, therefore, would be legitimate.”

28. Tahrir Mahmood in his book Muslim Law in India and Abroad, (2nd Edn.) at p. 151 also affirms that the child of a couple whose marriage is fasid i.e. unlawful but not void, under Muslim law will be legitimate. Only a child born outside of wedlock or born of a batil marriage is not legitimate.

29. A.A.A. Fyzee, at p. 76 of his book Outlines of Muhammadan Law (5th Edn.) reiterates by citing Mulla that the nikah of a Muslim man with an idolater or fire-worshipper is only irregular and not void. He also refers to Ameer Ali’s proposition that such a marriage would not affect the legitimacy of the offspring, as the polytheistic woman may at any time adopt Islam, which would at once remove the bar and validate the marriage.

31. Thus, based on the above consistent view, we conclude that the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor a void (batil) marriage, but is merely an irregular (fasid) marriage. Any child born from such wedlock (fasid marriage) is entitled to claim a share in his father’s property. It would not be out of place to emphasise at this juncture that since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.

Compiled by S.Basavaraj, Advocate, Daksha Legal

The Regional Manager, National Insurance Company Limited vs Sathi@Sathya and others. M.F.A. 8575/2015. Decided on 14 October 2010.

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343931/1/MFA8575-16-14-10-2020.pdf

Relevant paragraphs: 13. Point No.1: Before considering the submissions made by the learned counsel appearing for the appellant, it is not in dispute that the sixth respondent is a dealer engaged in selling the cars and the sixth respondent being   a dealer of cars, has insured the vehicle under reference with the fifth respondent under Motor Trade (Road Risks) Policy. The said insurance was in force with effect from 2^nd September 2013 to 1^st September 2014. In  order  to consider the risk covered under the Motor Trade (Road Risks) Policy, it is to be considered that a Motor Trade Insurance, also known as Road Risk Insurance is a policy designed to cover any injury, loss or damage to the third party caused by the vehicles involved in the business. This insurance is ideal to meet the business needs of individuals who are into the business of cars, motorbikes or  are involved in buying and selling of cars, serving or running a garage, etc. The said policy covers or takes care of machinery replacement value to vehicle replacement, etc. The said policy also covers any loss, destruction  or  damage caused to the insured vehicle or its accessories by an insured event. But in case of death or bodily injury to any person due to alighting from the vehicle insured at the time of the incident will not be covered  under  this Insurance.

15. As observed above, the Motor Trade (Road Risks) Policy is a policy which covers only replacement of accessories, destruction or damage caused to the insured vehicle.

18. Regarding registration of Motor Vehicle i.e., Trade Certificate, Rule 35 of the said Rules of 1989 prescribes as under:

“35. Grant or renewal of trade certificate:- (1) On receipt of  an  application for the grant or renewal of a trade certificate in respect of a vehicle, the registering authority may, if satisfied that the applicant is a bona  fide dealer and requires the certificates specified in the application, issue to the applicant one or more certificates, as the case may be, in Form 17 [within thirty days from the date of receipt of such an application]  and  shall assign in respect of each certificate a trade registration mark consisting of the registration mark referred to in the notification made under sub-section (6) of section 41 and followed by two letters and a number  containing not more than three digits for each vehicle.”

19. Rules 39, 40 and 41 of the said Rules of 1989 are relevant which reads as under:

“39. Use of trade registration mark and number:- (1) A trade registration  mark and number shall not be used upon more than one vehicle at a time or upon any vehicle other than a vehicle bona fide in the possession of the dealer in the course of his business or on any type of vehicle other than the one  for  which the trade certificate is issued.

40. Restriction on use of trade certificate or trade registration mark and number:- A trade certificate  shall  be  used only by the person to whom it is issued and such person shall not allow or offer or cause  the certificate or the number assigned in connection therewith to be used by any other person:

Provided that the provision of this rule shall not apply where the person to whom the certificate is granted, or a person bona fide in his employment and acting under his authority, or any other person bona fide acting on behalf of the holder of a trade certificate is present in the vehicle, or if such vehicle is designed for use by only one person and is being used by a prospective purchaser of that vehicle for the purpose of reasonable test or trial.

41. Purpose for which motor vehicle with trade certificate may be used:- The holder of a trade certificate shall not use any vehicle in a public place under that certificate for any purpose other than the following:-

a. for test, by or on behalf of the holder of a trade certificate during the course of, or after completion of, construction of repair; or

b. for proceeding to or returning from a weigh bridge for or after weighment, or to and from any place for its registration; or

c. for a reasonable trial or demonstration by or for the benefit of a prospective purchaser and for proceeding to or returning from the place where such person intends to keep it; or

d. for proceeding to or returning from the premises of the dealer or of the purchaser or of any other dealer for the purpose of delivery; or

e. for proceeding to or returning from a workshop with the objective of fitting a body to the vehicle or painting or for repairs; or

f. for proceeding to and returning from airport, railway station, wharf for or after being transported; or

g. for proceeding to or returning from an exhibition of motor vehicles or any place at which the vehicle is to be or has been offered for sale; or

h. for removing the vehicle after it has been taken possession of by or on behalf of  the financier due to any default on the part of the other party under the provisions of an agreement of hire-purchase, lease or hypothecation.”

20. The motor vehicle which is registered in the name of the owner of the said vehicle and further as per sub-section (3) of Section 41 of the said Act of 1988, when once the registering authority issues certificate  of registration to the owner of the motor vehicle, from the date of issuing a certificate of registration the  person  who has got registered the vehicle in his name will be the owner of the motor vehicle. That sub-section (1) of Section 140 provides that where death or permanent of any person has resulted from the accident out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement.

23. That as far as the Trade Certificate Insurance is concerned, sub-rule (1) of Rule 35 provides for grant or renewal of trade certificate.  The said trade certificate  will  be issued to the bona fide dealer and further the use  of trade registration mark and number Is concerned, sub- rule(1) of Rule 39 provides that trade registration mark and number shall not be used upon more than one vehicle at a time or upon any other vehicles bona  fide in possession of  a dealer in the course of its business.

28…..The fifth respondent is not liable to pay the compensation as awarded by the Tribunal as the vehicle involved in the accident is covered under the Trade Certificate Policy. The said Trade Certificate Policy is applicable to the persons who are engaged in buying and selling the vehicles, etc.

Compiled by S.Basavaraj, Daksha Legal

Mr. B.L. Pavecha, Senior Advocate, Indore

Section 438 Cr.P.C. provides for grant of anticipatory bail and confers powers upon the High Court as also on the Court of Session to grant it. Similarly Section 439 Cr.P.C. confers powers upon the High Court as also on Court of Session to grant bail and to direct release of a person accused of an offence and is in custody. Powers of the High Court and the Court of Session under both the provisions are coextensive and are of similar amplitude.

Such bail applications are usually first moved before the Sessions Court and if they are rejected there then an application for same relief is moved in the High Court. In recent years there is a growing tendency in the subordinate judiciary to reject bail applications even in deserving cases and, therefore, the person in custody is required to come to High Court with a prayer for grant of bail in a vast majority of cases. The number of bail applications filed in the High Court is growing every year and almost in every High Court and is a strain on its lengthy cause list.

While granting bail under Section 438 Cr.P.C. or under Section 439 Cr.P.C. the High Court and the Sessions Court have ample powers to impose conditions on the applicant as provided by Section 437(3) of Cr.P.C. to ensure the attendance of the applicant during trial, to prevent repetition by the applicant of the same offence and to prevent the applicant from tampering with the evidence. This provision also arms the Court with discretion to impose in the interest of justice such other conditions as it considers necessary.  

When a bail is granted to a person in custody by the Court usually he is required to execute a bond binding himself to regularly attend all dates of hearing during trial, to cooperate in the proceedings and not to tamper with evidence in any manner and not to commit any offence. Usually he is also required to furnish security in the amount mentioned in the bail order for due compliance of the terms of the bail bond. The Court has discretion to dispense with the requirement of furnishing security and may direct release of the applicant on execution of his personal bond only. Customarily bail orders are passed by Courts day in and day out on these conditions only. In some cases further conditions such as ban on foreign travel and deposit of passport in the Court or to remain out of a particular district or state throughout the trial are also imposed in order to ensure attendance or to protect the fairness and credibility of the trial.      

In recent years High Courts have started imposing conditions in bail orders which have no nexus with the crime or with the attendance of the accused during trial or with the fair conduction of the trial. This exercise is sought to be justified on the premises that the Court has ample power under Section 437(3) Cr.P.C. to impose such other conditions in the interest of justice as it considers necessary. Undoubtedly the power of the Court to impose conditions has been expressed in very wide terms but the very width of the power calls for restraint on its exercise. It cannot be exercised arbitrarily at the whim and caprice of the judge exercising it.

The applicant for bail at pre-trial or trial stage is not an offender and is presumed to be innocent until conviction is recorded against him and cannot be treated as a criminal requiring reform or deserving instant punishment. The conditions on which he is enlarged on bail must be commensurate with the objects of the provisions for bail namely to ensure his attendance during trial and to prevent him from tampering with the evidence and integrity of the trial as held by the Apex Court in the case Parvez Noordin Lokhandwalla v/s State of Maharashtra decided on 01.10.2020 (Para 14 to 19). The observations made in para 14 are pertinent and are read as under :-

“The language of Section 437(3) of the CrPC which uses the expression “any condition… otherwise in the interest of justice” has been construed in several decisions of this court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437 (3) and 439 (1) (a) of the CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail. “

An article written by Faizan Mustafa : “Strange and Arbitrary Bail Orders : Are Indian Judges Going Too Far?” available on The Wire dated 28.04.2020 gives an interesting account of some such strange conditions having no nexus with the trial or the object of the bail provisions recently imposed by the High Court of Jharkhand in bail orders. In the bail orders passed by Madhya Pradesh High Court also in recent years imposition of such strange and unheard of conditions can be seen frequently. The conditions of bail imposed in such orders vary in a wide range. They include plantation at regular intervals in public parks, cleaning the floor of court building, doing community service at a specified charitable institution, making contribution to some charity or to PM Relief Fund or donating a ventilator to a specified hospital. Further directions regarding compliance of these directions and for supervision of such compliance are also given in the bail order putting an additional strain on already overburdened registry.

Plantation, social or community service and charity are laudable if done voluntarily by a citizen but its imposition as a condition for grant of bail in a Court order is impermissible by law and is a dangerous judicial overreach. A person facing a trial for an offence is to be treated as an innocent citizen entitled to all the fundamental rights conferred by the Constitution. Plantation or community service extracted from him as a compulsion imposed on him for coming out of prison is violative of not only his fundamental rights but also a violation of statutory provisions forbidding bonded labour. Imposition of charity or donation on him under the same compulsion is clearly violation of Article 265 of the Constitution of India.

At times imposition of such onerous conditions is stated in the bail order to be with the consent of the counsel for the applicant and is sought to be justified as voluntary. This is farcical and far from reality. At the time of hearing and disposal of the bail application in High Court the applicant is not present and is behind the bars. The advocate’s first priority in such delicate situation is to see his client out of prison and he cannot afford to disagree with any suggestion made by the bench or to otherwise displease the judge simply for the fear of rejection of his bail application and as an inevitable consequence prolongation of his client’s imprisonment. It would be far from truth to treat his nod as consent and to glorify the imposition of such compulsive conditions as voluntary.

If in addition to about 750 members of higher judiciary all session judges also start imposing conditions which have no nexus with the case but generally good for the community and its welfare according to their own individual perception, there would be chaos and erosion of democracy and Rule of Law by judocrary. In addition a separate section would be required in every Court to supervise and secure compliance of such conditions.

It is interesting to note that such extraordinary conditions are imposed in bail orders passed in cases of commoners and villagers only who have no voice or public support to resist them. I have not even heard of any bail order imposing conditions like plantation, community service or charity passed on the application of any cinema star, cricketer, politician or a celebrity. In such a scenario, to borrow the language of Apex Court in Duda’s case, Article 14 of the Constitution weeps and weeps far too long and in utter silence.

S. Basavaraj, Advocate, Daksha Legal

The decentralization of power and vesting of powers to people at grassroots level has also created scenario which we can witness at the top level. One of the most litigated issue is motion of ‘No Confidence’ being moved against the heads of local-self government i.e. Zilla Panchayats, Taluka Panchayats and Gram Panhayats.

Whether a motion for expressing lack of confidence in the Chairman of these local authorities be withdrawn “after” the meeting is fixed by the officer concerned has been considered by few High Courts. I didn’t come across any judgment of the Supreme Court or the Karnataka High Court in this regard. The case laws quoted below dealt with a scenario where legislation and subordinate legislation are silent on this aspect.

In Tarun Bhandari vs State of Haryana ILR (2006) P&H 112, the Hon’ble High of Punjab and Haryana considered the issue of withdrawal of no confidence motion “after” a meeting was convened. Rule 72A of Haryana Municipal Election Rules, 1978 provides that a motion of no confidence may be withdrawn at any time ‘before’ the meeting is convened. In M.Ibeyaima Devi vs Mutum Babita Devi AIR 2000 Gou 124, the Hon’ble Gauhati High Court held that the general Section 21 of the General Clauses Act which is enabling provision does not apply to the case and hence requisition for no confidence motion once submitted cannot be withdrawn. The same High Court also held in Mohd Abudl latiff vs State of Manipur 2010 SCC OnLine Gau 596 that once no confidence proceedings has been set in motion, the same cannot be withdrawn or cancelled.

However, the Hon’ble Madyapradesh High Court in Prabhakar Narayan Kelkar vs. State of Madhya Pradesh (Writ Petition 1368/1997 decided on 10:9:1998) held that the entire edifice raised on the foundation of the requisition crumbles to the ground in case the requisition itself is withdrawn. In the said case, the requisition for no confidence was submitted on 6:7:1996. The Commissioner, by his order dated 25:9:1996 requisitioned a special meeting for the consideration of the motion of no-confidence which was to be held on 8:10:1996. However, the requisition was withdrawn by the proposers on 5:10:1996 by informing the Commissioner that the aforesaid requisition was withdrawn. Receiving the intimation regarding withdrawal of the requisition the Commissioner passed an order dated 7:10:196 cancelling the meeting scheduled to be held on 8:10:1996 for consideration of the motion of no-confidence. In this context, the Hon’ble High Court held that the meeting could not be held since the requisition itself is withdrawn though the withdrawal was many days after the meeting was actually fixed.

Noticing the judgment in Prabhakar Narayan Kelkar vs. State of Madhya Pradesh (Writ Petition 1368/1997 decided on 10:9:1998) the Hon’ble Karnataka High Court (Justice R. Devdas) has in R. Krishnegowda and others vs State of Karnataka and others, (Writ Petition 10705/2020 decided on 7 October 2020, permitted the persons who moved the no-confidence motion to appear before the deputy Commissioner on the date of meeting and reiterate their withdrawal of requisition for no confidence. The Deputy Commissioner was directed to record the said aspect and thereafter drop the motion of no confidence. Judgment link http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/342453/1/WP10705-20-07-10-2020.pdf

Can a Bar Council, which receives a complaint under Section 35 of the Advocates Act 1961, apart from initiating proceedings under the Act, also refer the matter to the law enforcement authority like Police if the complaint reveals a serious/cognizable offence?

The settled legal position has been that every citizen is also an ‘informant’ of offences. Section 39 of the Criminal Procedure Code imposes a duty on the public to give information of certain offences and says that every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under some sections of the Indian Penal Code shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.

Failure to report an offence is dealt under Section 202 of the Indian Penal Code which says that whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. However, in Section 202 IPC, the words “which he is legally bound to give” are significant.

Whether a statutory authority like Bar Council is legally bound to give information respecting the offence is debatable. However, if a complaint under Section 35 of the Advocates Act also reveals serious crime, the Bar Council will be well within its powers to inform the law enforcement authority about such a crime.

But this power shall be exercised with utmost caution and responsibility and shall not result in witch-hunt of a particular Advocate. Suppose, if the victim fears approaching the Police and rather approaches the Bar Council reporting a misconduct like sexual assault, the Bar Council is duty bound to, apart from initiating the proceedings under the Act, to inform the law enforcement authority like Police about ht serious crime revealed in the complaint. Allegations of fraud intra-parties or financial issues like cheating etc may not compel the Bar Council to undertake this exercise. However, serious crimes like blackmail or extortion using his position as an Advocate certainly falls within the ambit of ‘informant of crime.’ In such scenario, the Bar Council might well be within its powers and functions to also inform the Police about he crime. This shall be done only if the complainant has not filed any Police complaint or fears approaching the Police.

Conclusion: Apart from protecting the interests of the Advocates, the bar Councils are also duty bound to co-operate in law enforcement. Being a statutory authority, the Bar Councils can, in cases mentioned above, and subject to limitations, inform the law enforcement authority about serious crimes revealed in the complaints alleging professional misconduct. Bar Councils also must ensure that this power is not misused to unnecessarily target the advocate who has exposed illegalities.

S.Basavaraj, Member, Karnataka State Bar Council.

Gururaj Shenoy vs The Deputy Chief Labour Commissioner. and ohers. Writ Petition 11249/2015 decided on 9 October 2020. Justice N.S. Sanjay Gowda.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343703/1/WP11249-15-09-10-2020.pdf

Relevant Paragraphs: 4. In all these writ petitions, the validity of the orders passed in favour of the contract labour working at the Food Storage Depot at Udupi and Mysuru, whereby they are entitled for the same wages and the same service conditions on par with the other labour engaged under  the No Work No Pay system in the Food Storage Depot of FCI at Udupi and Mysuru and the Direct Payment system being paid at Food Storage Depot FCI at K.R.Nagar and Nanjangud, are under challenge by the  FCI and also by a Contractor, who had supplied labour to the FCI.

9. The FCI, as recorded by the Authority in its order at paragraph 2, admitted that the labour engaged through the Contractors and the labour paid through the Direct Payment system were doing the same work.

14. The Competent Authority, on consideration of the stand taken by the FCI, proceeded to record a finding  that the labour working at Mysuru and Udupi were doing the same and similar nature of work as the  labour working in the depots of FCI at K.R.Nagar  and  Nanjangud under the Direct Payment system and so also the labour working in the Food Storage Depot at Gadikoppa and Shivamogga under the No Work No Pay system and they were, therefore, entitled to be paid wages and be provided with the service conditions on   par with the labour working under the Direct Payment system in K.R.Nagar and Nanjangud and under No Work No Pay system in Gadikoppa and Shivamogga.

23. Thus, from the facts narrated above, the principal question that arises for consideration in these writ petitions is: “Whether the FCI can pay only minimum wages to the labour engaged through the contractors under the shield of a Labour  Contract and thereby deprive the  labour  who are doing the same or similar work as other labour in other Depots, the wages and the service conditions that the labour in the other depots were being given?”

32. In view of the above fact, the further question that would arise for consideration is that, when the  FCI  decide to engage labour through a Contractor, whether they could resort to payment of merely the minimum wages and thereby get over the requirement of paying to the labour wages on the Equal Pay for Equal Work principle. In other words, whether the FCI could pay different wages to the labour who were engaged in discharging the same nature of work, merely because some of the labour were engaged through a Contractor.

41……even in respect of labour supplied through a Contractor, the mandate of the law is that those labour supplied by the Contractor would have to be necessarily paid the same rate of wages and be given the same benefit of the same service conditions as that of the labour who had been directly employed by the principal employer who were discharging the same or similar nature of work.

44. If the law itself mandates that a Contractor, who is licensed to supply contract labour, should pay the same rate of wages and provide the same service conditions to his labour as the labour directly employed by the  principal employer, the principal employer cannot get  over this statutory mandate by entering into a contract which stipulates that the Contractor would only be required to pay minimum wages and thereby defeat the constitutional principle of Equal Pay for Equal Work.

46.A Contract is basically an agreement between two consenting parties, who are competent to contract and who have entered into an agreement for a lawful consideration and with a lawful object. If the consideration or object of the contract is to do an act which is forbidden by law or is of such a nature that if it  is permitted, would result in defeating the provisions of any law, then such a Contract, in law, is void (vide Section 10 and Section 23 of the Indian Contract Act).

50. ..the provisions of the Contract Labour  (Regulation  and Abolition) Act, 1970 would override any agreement that has been entered into between the principal employer and the Contractor, in respect of payment of wages to labour on the principle of Equal Pay for Equal Work.

58. The FCI, being a public sector undertaking, cannot seek to avoid its liability to pay the same wages to all its workers engaged in the task of loading and unloading in its depots, by resorting to a contract which basically nullifies a statutory term of the license. It is, therefore, necessary that the FCI be directed to pay the  difference of wages that becomes payable to the labour under the impugned orders by applying the principle of Equal Pay  for Equal Work.

Compiled by S.Basavaraj, Daksha Legal.

Dilip vs Nitin Jain. M.F.A. 200139/2018. Decided on 7 October 2020. Justice Siddappa Sunil Dutt Yadav and Justice P. Krishna Bhat. Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343597/1/MFA200139-18-07-10-2020.pdf

Relevant Paragraphs. 4. The only contention urged on behalf of the appellant is that the learned Tribunal was in error in absolving the Insurer of the offending vehicle, only on the ground that the offending vehicle was having permit to ply only within the territorial jurisdiction of Humnabad Municipal area and at the time of the accident the offending vehicle had moved outside the said jurisdiction and accident had taken place in the district of Kalaburagi where it had no permit to ply. In support of the said contention, learned counsel for the appellant places reliance on the observations of the Hon’ble   Supreme  Court  in  the   case  of   Amrit  Paul Singh and Anr. Vs. Tata AIG General Insurance Company Limited & Ors. reported in (2018) 7 SCC 558.

5. Learned counsel for the Insurer of the offending vehicle Sri Manvendra Reddy vehemently contends that while he has no dispute about the proposition of law laid down in Amrit Paul Singh’s case, the learned Tribunal ought to have held that there was contributory negligence on the part of the truck which was parked by the side of the road without displaying signals as required under Sections l22 & l26 of the Motor Vehicles Act, l988.

7. It is necessary to  refer  to  the  observations  of  the  Hon’ble  Supreme Court in Amrit Paul’s case at para-24, which reads as under: “24. In the case at hand, it is clearly demonstrable ƒrom the materials brought on record that the vehicle at the time oƒ the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind oƒ permit. The exceptions that have been carved out under Section 66 oƒ the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle.” As could be made out from the above, in the case before the Hon’ble Supreme Court, the offending vehicle had no permit at all. In the instant case, the offending vehicle did have a permit but in violation of the restricted zone of the permit, it was taken beyond its operative limits at the time of the accident. Thus, the principle of ‘pay and recover’ should apply with equal vigor in this case as well.

8. In view of the above, the finding of the learned Tribunal that respondent No.4 is not liable to pay the compensation is incorrect and the said finding is required to be modified with the observation that respondent No.4 shall first satisfy the award amount and thereafter it shall recover the same from the respondent No.3.

Compiled by S.Basavaraj, Daksha Legal

K.A.Priyanka vs The Superintendent of Police, Kalburgi. Writ Petition 226407/2020. Decided on 25 September 2020. Justice Hanchate Sanjeevkumar.

Judgment link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/343068/1/WP226407-20-25-09-2020.pdf

Relevant Paragraphs : Paragraph 6. Regarding controversy involved into the case, the relevant provisions has to be considered Sections 177, 178 and 179 of Cr.PC. stipulate as follows.“177. Ordinary place of inquiry and trial– Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 178. Place of inquiry of trial-  (a) When it  is uncertain in which of several local areas an offence is committed, or (b) where an offence is committed partly in one local area and partly in another, or (b) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. 179 .Offence triable where act is  done or consequence ensues.- When an  act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within shoes local jurisdiction such thing has been done or such consequence has ensued.”

7. In Priti Kumari’s case the Hon’ble Supreme Court has followed the previous judgment of the Hon’ble Supreme Court in Rupali Devi’s V/s State of Uttar Pradesh and others, (2019) 5 SCC 384. Hence formed opinion that the transfer of the complaint and FIR from jurisdiction of one police station to another jurisdiction police station is not correct, since the offences under Section 498-A is having continuously effect, even the complainant is residing / taking shelter in parents’ home or under shelter of anybody else where the complainant is residing and lodged complaint, then those concerned police have power to conduct the investigation.

8. I place reliance on the decision of Hon’ble Supreme Court in Rupali Devi’s case (supra). In the above stated case, the question for determination was observed as follows: – “Whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with the parents or other family members?” .

10…the Hon’ble Supreme Court in the above said judgment ultimately were pleased to lay down the law which is at para No.16. “16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of  offences     under      Section      498-A     of    the Penal Code.”

11…the mental trauma out of the said cruelty as observed by the Hon’ble Supreme Court is having continuing effect, therefore the Ballary Women Police Station have jurisdiction to entertain the complaint and competent enough and having jurisdiction to investigate into the matter and to file final report. But without doing so the Ballary Women Police Station have transferred the complaint and FIR to the Shahapur Police Station is not correct as per the principle of law laid down by the Hon’ble Supreme Court in Rupali Devi’s case (supra). Therefore, the present petition succeeds and accordingly the respondent police are hereby directed that the complaint and FIR registered in the Ballary Women Police Station shall be revived and respondent Nos.2, 5 and 6 shall continue the investigation in Crime No.82/2020 of Ballary Women Police Station and file final report as per law. Therefore, it is directed the respondent Nos.3 and 4 to retransfer the complaint and FIR to the Ballary Women Police Station as stated above as per observations made. Accordingly, the petition is allowed.

Compiled by S.Basavaraj, Daksha Legal