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Lawyer Who Was Not Engaged Earlier Cannot Re-Argue Case By Filing Review Petition: Punjab & Haryana High Court Imposes 20K Cost
The Punjab & Haryana High Court has made it clear that a lawyer, who was not even the filing or arguing counsel previously in the matter, cannot file a review of the case to re-argue the matter.The Court dismissed the review application with an exemplary cost of Rs.20,000 observing that there was no reason to file the review and the case cannot be re-argued by filing the review...

The Orissa High Court has held that disciplinary proceedings initiated against a judicial officer cannot be quashed merely because the allegations, on the basis of which the action was taken, was not supported by no a duly sworn-in affidavit.

While dismissing the plea of a sitting judicial officer to quash a disciplinary proceedings initiated against him, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash held,

“While the guideline aims to protect judicial officers from unwarranted harassment, it does not eliminate the possibility of addressing genuine issues faced by individuals or communities due to the actions of a judicial officer. The High Court retains the take appropriate action based on verified facts. The requirement for sworn affidavits and verifiable material ensures that the process is fair and that decisions are not arbitrary.”

Factual Background

The petitioner while was working as the Senior Civil Judge-cum-Assistant Sessions Judge, Khariar in the district of Nuapada was subjected to a complaint made by the Secretary of the Judicial Bar Association, Khariar. In the said letter, serious concerns were raised about the conduct and behaviour of the petitioner and a request was made to the Chief Justice to cause an enquiry against him.

Looking into the allegations made in the letter, the Court decided to ascertain the authenticity of the same and for that purpose, it directed the District & Sessions Judge, Nuapada to conduct an enquiry and submit his report.

The District Judge conducted an enquiry examining eight advocates, including four advocates who were signatory to the complaint-letter. The Court then asked the District Judge to provide specific comments on his preliminary enquiry and obtain a reply from the petitioner regarding the allegations.

In response thereto, the District Judge provided his comments and the petitioner also filed his reply to the allegations made against him, whereby he termed the allegations to be vague and baseless and refuted the accusations out-rightly.

After receipt of the response from the petitioner, the Court initiated a disciplinary proceeding against him primarily basing upon the preliminary enquiry report of the District Judge. Being aggrieved by the same, the petitioner approached the High Court seeking to quash the proceeding.

Contentions of the Parties

Samir Kumar Mishra, Senior Advocate appearing for the petitioner assailed the very initiation of the disciplinary proceeding on the sole ground that the complaint was not supported by sworn affidavits and is in derogation of the guidelines issued by the Chief Justice of India in a letter dated 03.10.2014.

To that effect, the senior counsel placed reliance on the judgment of the Supreme Court in the case of Suchismita Misra v. High Court of Orissa & Ors. and the decision of the Uttarakhand High Court in the case of Dhananjay Chaturvedi v. High Court of Uttarakhand.

Per contra, the Rabi Narayan Mishra, Addl. Government Advocate argued that although the complaint lacked sworn affidavits, its authenticity is supported by it having been sent on the official letter-head of the Judicial Bar Association, duly signed by both the President and the Secretary of the Bar Association.

Thus, he asserted that the departmental proceeding was initiated based on verifiable material and a thorough enquiry to ensure legitimacy, including the examination of relevant witnesses and gathering of sufficient evidence to support the charges.

Court's Findings

The Court, at the outset, considered the guideline issued by the CJI in 2014 wherein he categorically directed the High Courts not to entertain any complaint against any judicial officer unless it is accompanied by sworn affidavits and verifiable material to substantiate the allegation.

Interpreting the said guideline, the Court was of the view that a complaint cannot be dismissed in limine only because it is not supported by sworn affidavits. Accordingly, it held:

“It emerges, that, merely because a complaint is not supported by sworn affidavits, it does not automatically warrant an outright dismissal. In the complete and comprehensive reading of the said guideline, a complaint is not supposed to be ignored from its very inception without even verifying the legitimacy of the complaint as nowhere in the guideline the High Court is debarred from initiating its own enquiry over any complaint where the allegations prima facie reveals verifiable material supporting the complaint subject to an enquiry on the authenticity of the allegations against a concerned judicial officer.”

In the present case, the Court observed, the complaint was duly signed by several members of the Bar, thus providing verifiable materials to substantiate the allegations. The Bench further underlined that “Sd/-” notation was made on the complaint which signifies that the signatory has approved the document.

“In this case, the resolution by the Judicial Bar Association, Khariar, contains this notation, indicating approval by the signatory. Moreover, it is pertinent to note that several members of the Bar have actually signed the said resolution, reinforcing its legitimacy. Additionally, the complaint letter and all other communications sent to this Court bear the valid stamp and signature of the learned Secretaries of both the Khariar Bar Association and Judicial Bar Association, Khariar further validating the authenticity of the documents,” it added.

Above all, it held that even though the complaint was received under the letter-head of the Judicial Bar, still the Court deemed it proper to verify the authenticity of the same through the District Judge. It clarified that the disciplinary proceeding was initiated on the basis of the preliminary findings of the District Judge.

“This process ensured that the proceedings were not influenced by vested interests or personal agendas, thereby aligning with the guideline to maintain fairness and non-arbitrariness in handling complaints against judicial officers. Therefore, the initiation of the departmental proceedings against the Petitioner was neither defective nor illegal, complying fully with the guideline issued by the Hon'ble Chief Justice of India,” it said.

Resultantly, dismissing the plea of the petitioner to quash the disciplinary proceeding, the Court concluded:

“Given the gravity of the allegations and the substantial evidence collected during the enquiry, prima facie there appeared material that the Petitioner's behaviour is inconsistent with the expectations and responsibilities of a judicial officer, undermining the integrity and reputation of the judiciary, warranting strict disciplinary action.”

Case Title: Santosh Kumar Agarwal v. Orissa High Court, Cuttack & Ors.

Case No: WP(C) No. 17678 of 2024

Date of Judgment: August 08, 2024

Counsel for the Petitioner: Mr. Samir Kumar Mishra, Senior Advocate

Counsel for the Respondent: Mr. Rabi Narayan Mishra, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 68

The Karnataka High Court has said that when parents transfer property by way of gift, a reasonable expectation that their offspring would take care of their requirements in their old age can imputed from the pleadings made in the application filed under Section 23 of the Maintenance And Welfare Of Parents And Senior Citizens Act, even if not so mentioned in the gift deed.

Section 23 pertains to transfer of property to be void in certain circumstances.

A single judge bench of Justice Suraj Govindaraj held thus while setting aside an order passed by the Assistant Commissioner, which had rejected the application made by one Shobha seeking to void the gift deed executed in favour of her son Dr Anil P Kumar after he showed disinterest in ensuring her and her husband's welfare and did not provide basic amenities and tend to physical needs during old age.

The court declared the gift deed as void and directed the son to hand over the property subject matter of the Gift Deed, to the mother, within sixty days.

The counsel for the petitioner had contended that the very purpose of executing the Gift Deed in favour of her was to enable him to build a Nursing Home in furtherance of the education which had been imparted to him after incurring huge expenses by her and her husband and take care of them.

The counsel for the son placed reliance on the Supreme Court judgment in the case of Sudesh Chhikara vs. Ramti Devi and another in Civil Appeal No.174/2021 disposed of on 06.12.2022 and argued that without a clause in the Gift Deed being present as regards an obligation on the donee to take care of the basic necessities of the donor parent, there cannot be an obligation so imposed.

Further, his father was a retired Range Forest Officer who had enough and adequate properties, income and pension amount, as such there is no requirement for him to take care of the petitioner's daily needs, but he undertook to take care of her medical treatment or otherwise if any.

Findings:

The court noted that the petitioner and her husband out of love and affection towards their son had maintained him during his studies, supported him during his education and made payment of all the educational expenses. After completion of his education, when the son expressed his desire to set up a Nursing Home at Raichur, the petitioner transferred her property under a Gift Deed to enable easy construction by obtaining all permissions in his name.

It was submitted in paragraph 6 of the petition that the son had promised that he would provide basic amenities and physical needs to his mother and thereby the gift deed was executed.

Stating that the Apex court judgment relied on by the son would not be applicable to the present case, the court said, “The Hon'ble Apex Court has not in as many words categorically stated that the condition for providing basic amenities and basic physical needs is to be incorporated in the Gift Deed and Release Deed, but what has been held in that case is that the pleadings did not indicate any such obligation having been undertaken by the donee or the releasee made in an application filed under Section 23 of the Act.”

Then it said, “The contention that there is no obligation imposed in the Gift Deed and therefore, jurisdiction under Section 23 of the Act cannot be exercised is not countenanced by the said judgment.”

Noticing that the father had died during the pendency of the proceedings the court said “I am unable to countenance the stand of the son that there is no obligation on the part of the son to take care of his mother during her old age, merely because, there is no such obligation imposed in the Gift Deed.”

The court also clarified that the age of the application filing a petition under Section 23 of the Act would have to be considered on the date of the application, so long as the applicant satisfies the requirement of being a senior citizen on that day, the same would be sufficient and it is not required for the donor or releasor to be a senior citizen on the day on which the Gift or Release is executed.

Accordingly, it allowed the petition.

Appearance: Advocate Shivanand Patil, for the petitioner.

Advocate Ganesh S.Kalburgi, for R1.

Additional Government Advocate Shivakumar R.Tengli, for R2.

Citation No: 2024 LiveLaw (Kar). 374

Case Title: Shobha AND Dr Anil P Kumar

Case No: WRIT PETITION NO. 202832 OF 2019

The Gujarat High Court has quashed the criminal proceedings and FIR against a factory supervisor accused of abetting an employee's suicide.

The court found insufficient evidence of direct or indirect incitement by the accused to the suicide, noting that mere allegations of harassment without positive action proximate to the time of the incident do not justify a conviction under Section 306 of the Indian Penal Code (IPC).

Justice Divyesh A Joshi, presiding over the case, observed, “It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide, however, merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the deceased to commit suicide, conviction recorded under Section 306 of the IPC cannot be said to be just and legal.”“Therefore in view of the above discussions coupled with the facts and material of the case, it cannot be said that the suicide by the deceased was the direct result of the so-called action taken upon the deceased at the factory premises, which is alleged to have stated in the diary maintained by the deceased,” Justice Joshi added

The above ruling came in response to an application filed under Section 482 of the Code of Criminal Procedure, 1973 whereby the applicant sought to quash and set aside the FIR registered for the offences under Section 306 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act and subsequent proceeding pursuant to filing of the chargesheet pending before the court of the 9th Additional City Civil & Sessions Judge, Ahmedabad (City).

According to the FIR, the complainant's husband, Hashmukhbhai was an employee at Arvind Ltd., where the applicant, who was his superior officer, allegedly subjected him to discrimination and mental harassment by pressuring him regarding work and leave, which led Hashmukhbhai to commit suicide by hanging himself, thereby implicating the applicant in abetting the suicide and committing the alleged offences.

The primary argument advanced by the Senior Counsel appearing for the applicant was that the applicant was wrongly implicated in the FIR by the complainant, who is the widow of the deceased. The counsel contended that the applicant didn't commit any offence and pointed out that there was no supporting statement from independent witnesses to corroborate the prosecution's case. The applicant's actions, as highlighted by the counsel, were in line with his duties aimed at the betterment of the company, and the reasons behind the deceased's suicide were known only to him, with no abetment for suicide at the applicant's hands.

On the other hand, the main argument advanced by the advocate appearing for the original complainant was that the deceased's suicide was directly caused by the mental harassment inflicted by the applicant. and the said fact was supported by the diary purportedly written by the deceased.

The Court, after hearing the counsels appearing for the respective parties and perusing the contents of the FIR, at the outset considered whether the ingredients of the alleged offences under Section 306 of the IPC and Section 3(2)(v) of the Atrocities Act were made out against the applicant.

The Court observed that the High Court possesses inherent power to act "ex debito justitiae," meaning to do real and substantial justice or to prevent abuse of the Court's process. It emphasized that while these powers are very wide, they impose a solemn duty on the Courts, requiring great caution in their exercise. The Court noted that it must ensure that any decision made under this power is grounded in sound principles. Furthermore, the Court stated that the inherent power should not be used to stifle a legitimate prosecution.

However, it also affirmed that the High Court is entitled to quash a proceeding if it concludes that allowing the proceeding to continue would constitute an abuse of the Court's process or if the ends of justice demand that the proceeding be quashed.

The Court remarked that when an accused invokes the inherent powers under Section 482 of the Criminal Procedure Code to quash and set aside an FIR on the grounds that such proceedings are manifestly frivolous, vexatious, or instituted with an ulterior motive for wreaking vengeance, the Court has a duty to scrutinize the FIR with care and in greater detail.

The Court clarified that while exercising its jurisdiction under Section 482 of the CrPC need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/ registration of the case as well as the materials collected in the course of investigation.

The Court observed that in order to convict a person for the offences under Section 306 IPC, the basic and essential ingredients of the offence namely where the death was suicidal and whether there was an abetment and instigation on the part of the accused as contemplated in Section 107 IPC have to be established.

The Court further observed that the IPC does not define "suicide," but the ordinary dictionary meaning of suicide is self-killing. The Court stated, “The word is derived from a modern latin word suicidium, sui means oneself and cidium means killing. Thus, the word suicide implies an act of self-killing. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Therefore considering the facts of the case, it is found out that the ingredients of Section 306 of the IPC are not made out in the present case.”

“There is absolutely no averment in the recital of the diary that the present appellant had caused any harm to him. It seems that the deceased was very much dissatisfied for whatever reasons at his work place, therefore, it cannot be said that the present appellant had in any way instigated the deceased to commit suicide or he was responsible for the suicide of the deceased. It is pertinent to note at this stage that an offence under Section 306 of the IPC would stand only if there is an abetment for the commission of the crime. The parameters of “abetment” have been stated in Section 107 of the Penal Code, 1860, which is quoted hereinabove,” the Court further noted.

Expounding on Section 107, the Court explained that a person abets the doing of a thing if they instigate another person to do that thing, engage in a conspiracy for the doing of that thing, or intentionally aid any act or illegal omission in pursuance of that conspiracy.

The Court emphasized that the prosecution of the appellant under Section 3(2)(v) of the Atrocities Act was "ex facie illegal and unwarranted" because the entire charge sheet did not suggest that the offence under the IPC was committed by the applicant against the deceased based on his caste. The Court concluded that the necessary ingredients of the offence under Section 3(2)(v) of the Atrocities Act were not present to justify the prosecution of the appellant.

The Court observed that the prosecution's case was entirely based on the diary purportedly written by the deceased before committing suicide. After a careful examination of the diary, which was part of the charge-sheet, the Court noted, “I have minutely perused the said diary, which is part of chargesheet papers, which clearly goes on to show that the deceased was disturb state of mind on account of work pressure and was apprehensive of various random factors unconnected to his work. However, such apprehensions expressed in the diary, by no stretch of imagination, can be considered sufficient to attribute to the applicant, an act or omission constituting the elements of abetment to commit suicide.”

On a minute perusal of the said diary, the Court found no evidence indicating any act or omission by the applicant that would make him responsible for abetment as defined under Section 107 IPC. The Court further pointed out that even if the allegations in the FIR were assumed to be true, there was no proximate cause shown by the complainant that could link the accused to the deceased's decision to commit suicide.

Accordingly, it allowed the plea.

Case Title: Maheshbhai Dhirubhai Darji Versus State Of Gujarat & Anr.

LL Citation: 2024 LiveLaw (Guj) 116

Home  / News Jail For Up To 1 Year & Fine Up To ₹ 50,000 For Violations Of Registration Conditions: Assam Passes Bill Mandating Registration Of Muslim Marriages And Divorces [Read Bill] BySukriti Mishra|30 Aug 2024 6:00 PM The Assam Legislative Assembly on August 29 passed the Assam Compulsory Registration of Muslim Marriages and Divorces Bill, 2024, which makes the registration of all Muslim marriages and divorces in the state mandatory. The Bill, introduced by Revenue and Disaster Management Minister, Jogen Mohan, aims to improve the quality of life for young girls by preventing child marriages, teenage pregnancies and ensuring the protection of women’s rights. The Bill mandates that marriages involving individuals below the legal age—18 years for women and 21 years for men—will not be registered or considered valid. This measure is specifically designed to combat child marriage and to safeguard the consent and rights of both parties in a marriage. The legislation also aims to curb polygamy, ensure that married women can claim their right to live in the matrimonial home, secure maintenance, and enable widows to assert their inheritance rights and access other benefits after the death of their husbands. Also Read - Senior Advocate Adish Aggarwala Threatens To Move No Confidence Motion Against SCBA President Kapil Sibal If He Does Not Withdraw Controversial... Section 3 of the bill deals with registration of marriage, and states that any Muslim marriage solemnised in Assam, before or after the commencement of the Act (other than a marriage solemnised under the Special Marriage Act, 1954) will have to be registered. It further states that the individuals should meet the legal age requirements of 18 years for girls and 21 years for boys. The Bill explicitly states that marriages will only be registered if both parties enter the union freely, ensuring that forced or underage marriages are not legally recognized. The Bill introduces stringent penalties for non-compliance, prescribing a jail term of up to one year and a fine of up to Rs. 50,000 for violations of the registration conditions. Additionally, it empowers marriage and divorce registrars to refuse the registration of marriages if they find discrepancies, provided they document the reasons in writing. Registrars are also required to report any instances of child marriages to child marriage prohibition officers, further reinforcing the state's commitment to eradicating this illegal practice. Also Read - Personal View Passed Off As Resolution Of EC: SCBA Executive Committee Members Object To 'Resolution' On RG Kar Hospital Incident Signed By Kapil... The legislation also provides a mechanism for objections to marriage registration notices, allowing a 30-day window for any challenges. Those dissatisfied with the decision of a marriage and divorce registrar can appeal to the district registrar, with a further option to appeal to the registrar general of marriage. The Assam Assembly also passed The Assam Repealing Bill, 2024, which abolished the Assam Moslem Marriages and Divorces Registration Act, 1935, and the Assam Repealing Ordinance, 2024.

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