- The warrant of arrest is in prescribed form.
- The requisites of a valid warrant are as given below:
- The warrant of arrest shall be in writing.
- It shall be signed by the presiding officer of the court.
- It shall bear the name and designation of the person who is to execute it.
- It must indicate the clear name and address of the accused.
- It should state the offence with which those accused are charged.
- It should indicate the date of the issue of the warrant of arrest.
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26 December, 2011
Legal Knowledge::::Warrant of Arrest
Legal Knowledge::::: The customer is liable to pay the extra price when the excise duty had been enhanced prior to the delivery of the vehicle
- Customer booked a car with the manufacturer
- Customer was asked to complete the modalities for delivery of the car
- Indication in the proforma invoice that the price prevailing at the time of billing would be applicable
- Billing of the car done a year later
- Meanwhile, increase in excise duty resulting in price hike
- Deposit of the excess amount by customer under protest
- Plea of the customer that since he was not responsible for the delay in the delivery of the vehicle, he was not liable to bear the increase the price
- Held: In terms of s. 64-A (1)(a), it is the liability of the customer to pay the extra price when the excise duty had been enhanced prior to the delivery of the vehicle
- On facts, no evidence to show that there was any deliberate intention on the part of the manufacturer and the dealer to delay the delivery of the vehicle
- Thus, the order passed by the National Commission that the increase in price by way of additional taxes is to be borne by the customer and not by the manufacturer, upheld by Supreme Court.
14 December, 2011
Legal Alert:::: Domestic Violence Complaint could be filed only within a period of one year from the date of incident-Under Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 provision of Cr.P.C. are applicable
- That the appellant and respondent no. 2 got married on 23.9.1998 at Jalandhar as per Sikh rites and from the said wedlock a son, namely, Gurarjit Singh was born on 5.10.1999. The parties to the marriage could not pull on well together because of temperamental differences and decided to get divorce and, therefore, filed HMA Case No. 168 of 19.9.2007 before the District Judge, Ludhiana under Section 13-B of Hindu Marriage Act, 1955 (hereinafter called the `Act 1955') for dissolution of marriage by mutual consent. In the said case, statements of appellant and respondent no. 2 were recorded on 19.9.2007 and proceedings were adjourned for a period of more than six months to enable them to ponder over the issue.
- The parties again appeared before the court on 20.3.2008 on second motion and their statements were recorded and both of them affirmed that it was not possible for them to live together and, therefore, the learned District Judge, Ludhiana vide judgment and order dated 20.3.2008 allowed the said petition and dissolved their marriage.
- Respondent no. 2 filed a complaint before Senior Superintendent of Police, Ludhiana against the appellant on 4.5.2009 under the provisions of the Act 2005 alleging that the decree of divorce obtained by them was a sham transaction. Even after getting divorce, both of them had been living together as husband and wife. She was forced to leave the matrimonial home. Thus, she prayed for justice. The said complaint was sent to SP, City-I, Ludhiana for conducting inquiry.
- The said SP, City-I conducted the full-fledged inquiry and submitted the report on 4.5.2009 to the effect that the parties had been living separately after divorce and, no case was made out against the present appellant. However, he suggested to seek legal opinion in the matter.
- Accordingly, legal opinion dated 2.6.2009 was sought, wherein it was opined that the parties had obtained the divorce decree by mutual consent and the allegations made by respondent no. 2 against the appellant were false and baseless and the purpose of filing the complaint was only to harass the appellant.
- Respondent no. 2 subsequently filed a complaint under the Act 2005 on 12.6.2009. The learned Magistrate issued the summons to the appellant on the same date. The Magistrate vide order dated 3.10.2009 summoned the minor child for counseling. The appellant, being aggrieved of the order of Ld. Magistrate dated 12.6.2009, filed application dated 13.10.2009 under Section 482 Cr.P.C. for quashing the complaint dated 12.6.2009.
- Respondent no. 2 also filed application dated 17.12.2009 under Guardians and Wards Act, 1890 for grant of custody and guardianship of the minor child Gurarjit Singh and the same is pending for consideration before the Additional Civil Judge (Senior Division), Ludhiana.
- Respondent no. 2 on 11.2.2010 also lodged an FIR under Sections 406, 498-A, 376, 120-B of the Indian Penal Code, 1860 (hereinafter called `IPC') against the appellant and his mother and sister.
- In the instant case, the parties got married and the decree of Civil Court for divorce still subsists. More so, a suit to declare the said judgment and decree as a nullity is still pending consideration before the competent court.
- In view of the provisions of Section 468 Cr.P.C., that the complaint could be filed only within a period of one year from the date of the incident seem to be preponderous in view of the provisions of Sections 28 and 32 of the Act 2005 read with Rule 15(6) of The Protection of Women from Domestic Violence Rules, 2006 which make the provisions of Cr.P.C. applicable and stand fortified by the judgments of this court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762; and Noida Entrepreneurs Association v. Noida & Ors., (2011) 6 SCC 508.
- In view of the above, we are of the considered opinion that permitting the Magistrate to proceed further with the complaint under the provisions of the Act 2005 is not compatible and in consonance with the decree of divorce which still subsists and thus, the process amounts to abuse of the process of the court. Undoubtedly, for quashing a complaint, the court has to take its contents on its face value and in case the same discloses an offence, the court generally does not interfere with the same. However, in the backdrop of the factual matrix of this case, permitting the court to proceed with the complaint would be travesty of justice. Thus, interest of justice warrants quashing of the same.
- The appeal succeeds and is allowed. The impugned judgment and order dated 9.8.2010 is hereby set aside. Petition filed by the appellant under Section 482 Cr.P.C. is allowed. Complaint No. 87/02/09 pending before the Magistrate, Jalandhar and all orders passed therein are quashed.
10 December, 2011
Insurer can recover compensation amount from the insured owner of the vehicle in spite of excess of permitted number of passenger
Persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could recover it from the insured owner of the vehicle—Supreme Court of India
- Motor Vehicles Act, 1988 – sections 147 and 149 – Motor accident – Compensation – Liability of insurer –
- Insurance policy taken by the owner of the vehicle covering six passengers including the driver
- Vehicle while driven by father of the owner, met with an accident
- Passengers in excess of the number covered by the insurance policy, travelling in the vehicle at the time of accident
- Death/injury to the passengers
- Claim petitions – Liability of the insurer
- Held: Is confined to the number of persons covered by the insurance policy only and liability to pay the other passengers is that of the owner of the vehicle
- Persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could recover it from the insured owner of the vehicle
- There can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company
- In the interest of justice, Insurance Company directed to deposit the total amount of compensation awarded to the claimants which would be disbursed to the claimants
- Insurance Company would be entitled to recover the amounts paid by it, in excess of its liability, from the owner of the vehicle, by putting the decree into execution.
Source:- UNITED INDIA INSURANCE CO. LTD. vs. K.M. POONAM & ORS. FEBRUARY 18, 2011 ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.
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03 December, 2011
Legal Alert:::District Forum and State Commission Have not been Given Any Power to Set Aside Ex parte Orders and Power of Review--Supreme Court
The main question which arises for consideration is whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders? The questions of law involved in both the appeals are identical, therefore, the Hon’ble Supreme Court deem it appropriate to dispose of both these appeals by a common judgment.
Brief facts necessary to dispose of these appeals are recapitulated as under:
First Appeal:-
Smita Achyut Karekar was admitted to Ashirwad Nursing Home as she was suffering from the ailment of slip disc. The operation was performed on 8.10.1997. It was noticed, at about 3.45 pm on that day, that her blood vessels had ruptured accidentally during the surgery. She was declared dead at 5.35 pm.
The complainants issued a legal notice on 24.7.1999. Reply to the legal notice was sent on 7.8.1999. The complainants filed complaint alleging deficiency in service and claimed compensation of Rs.15,00,000/-. The complainants did not take necessary steps to remove objection and to complete procedure under the Consumer Protection Act, 1986. The State Commission, Maharashtra issued notice to the opposite parties/appellants herein on 10.02.2004. On 9.9.2004, the State Commission dismissed the complaint for want of prosecution. On 04.11.2004, the complainants filed an application for recalling 9.9.2004 order and consequently the State Commission recalled the order dated 9.9.2004 and restored the complaint. The appellants aggrieved by the said order preferred a Revision Petition No.551 of 2005 before the National Consumer Disputes Redressal Commission, New Delhi. The appellants in the revision petition made two main arguments before the Commission : firstly, that the State Commission did not have the power to restore the complaint and, secondly, that the State Commission restored the complaint without issuing notice to the appellants. The National Commission dismissed the revision petition which has been challenged by the appellants before this Court.
Second Appeal
The National Commission passed an ex parte order and in the appeal against the order, this Court gave liberty to the appellants to approach the Commission for setting aside the ex parte order. Thereafter, an application was filed by the complainants for review of the order. The Commission vide order dated 12.7.2001 (relied on the judgment of Jyotsana’s case) 17dismissed the application. Aggrieved by the said order, the appellant has filed this appeal.
On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
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10 November, 2011
Legal Alert::Whether foreign airliner amenable to the jurisdiction of national Commission – Held Yes by Supreme Court
No n d e l i v e r y o f consignment by foreign airliner – Complaint entertained by National Commission and compensation granted – Whether foreign airliner amenable to the jurisdiction of national Commission – Held,Yes by Supreme Court
The appellant is an International Cargo carrier, with its principal place of business at Beirut, Lebanon. Respondent No.1 is a garment exporter and respondent No.2 is an accredited International Air Transport Association agent. The agent made out three airway bills for shipping of garments to Spain on behalf of the consignor through the appellant-carrier .In the consignee column, the consignment was addressed as: The airway bills from Bombay to Amsterdam were dated 25- 08-1992 and the consignment through the appellant-carrier reached Amsterdam on 30-08-1992. From Amsterdam, the consignments were sent to Madrid by road on the following day, and they reached Madrid on 03-09-1992 and were cleared by the Customs Authorities. The appellant-carrier delivered the consignment to M/s Liwe Espanola, as according to them, that was the only recognizable address available from the documents furnished by the consignor.
After nine months from the date of shipment, the agent made enquiry regarding two of the three airway bills. Since there was no response, the agent made further enquiry again after four months. In response to the query, the appellant-carrier informed the consigner that on finding the full name and complete postal address of the consignee as M/s Liwe Espanola, the appellantcarrier has delivered the goods to it. It was at this stage, the consignor claimed that the consignee of the said consignment was Barclays Bank, Madrid, which had only one branch in Madrid and since the appellant carrier had wrongly delivered the consignment to the address mentioned in the Block column instead of routing it through Barclays Bank and, therefore, there is deficiency of service. Accordingly, the consignor instituted a complaint under Section 12 of the CP Act before the National Commission, inter alia, claiming compensation for the alleged deficiency of service by the appellant-carrier and the agent for not delivering the said consignment to the consignee. The National Commission, after considering the entire evidence on record, has come to the conclusion that the services rendered by the appellant-carrier was deficient and thereby, it was liable to pay compensation equivalent to US $71,615.75 with 5% interest from the date of the Complaint till its realization, and imposed costs of Rs.1 lakh. It is the correctness or otherwise of this order, which is called in question in this appeal.
The Hon’ble Supreme Court has dismissed the appeal of appellant and held that National Commission has jurisdiction to decide the dispute between the parties and it is a Court and that there was deficiency in service by the appellant-carrier.
Reason:- In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy. In the instant case, at the relevant point of time, the value of the subject matter was more than Rs.20 lakhs, by which the National Commission is conferred jurisdiction for any cause of action that arises under the Act. In the present case, as we have already noticed that the consignor had furnished all the relevant information in the airway bill which would satisfy the requirements of both Rule 6 and 16 of the rules and, therefore, the consignor cannot be accused of not furnishing the correct particulars and information in the airway bill which is handed over to the appellant-carrier with the cargo. In our view, the appellant carrier cannot absolve its responsibilities by contending that it would be practically impossible to verify the correctness of all the airway bills which are furnished with the cargo. The appellant’s contention that the name and address of the consignee was inadequate is difficult to accept. There is evidence on record to show that documents supporting the letter of credit were sent by the consignors using the selfsame name and address and there was no difficulty in the same being delivered to the consignee bank. We are in total agreement with the conclusion reached by the National Commission. Therefore, we do not see any merit in the contention canvassed by the learned counsel for the appellant-carrier. We conclude that the National Commission has jurisdiction to decide the dispute between the parties and it is a Court and that there was deficiency in service by the appellant-carrier.
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09 October, 2011
02 October, 2011
Special Legal Tip for Old Parents
The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 passed by parliament in December 2007, has been brought in to force by all seven UTs and following 23 states
Andhra Pradesh, Karnatka Kerala, Tamil Nadu, Maharashtra, Gujarat, Madhya Pradesh, Goa ,Chhattisgarh, Punjab ,Haryana ,Rajasthan, Uttarakhand ,West Bengal , Orissa, Bihar, Jharkhand Assam, Arunachal Pradesh, Manipur, Tripura, Mizoram, Nagaland
SALIENT FEATURES OF THE ACT
- Definitions
“Senior Citizen” is any citizen of India aged 60+, whether living in India or not.
“Parent” is a father or mother, even if below 60 years in age.
“Children” include adult son, daughter, grandson and granddaughter.
- Whether , Senior Citizen / parent/ grand parent, who is unable to maintain himself from his own income, can claim maintenance from his children.
- A childless Senior Citizen can claim maintenance from his relative who is in possession of , or would inherit the senior citizen’s property.
- Obligation of the children/relative with sufficient means is to meet the needs of the parents/senior citizen so that they can lead a normal life.
- State Governments have constituted /are constituting Maintenance Tribunal at Sub Divisional Level. Senior Citizen may submit application for maintenance to this tribunal.
- If Senior Citizen is incapable of making a application himself, any other person or registered voluntary organisation authorized by him can file it on his behalf.
- Maintenance Tribunal can award up to Rs. 10,000 per month as maintenance allowance payable to the senior citizen by his child/relative. They have to decide the application for maintenance within ninety days.
- Transfer of property by senior citizen in favour of a child/relative, done after commencement of the act can be declared void by the Tribunal in case of negligence by child/relative looking after the senior citizen.
- Appeal against an order of Maintenance Tribunal can be the filed with the District Level Appellate Tribunal.
- Legal practioners cannot represent parities before Maintenance & Appellate Tribunals.
- State Governments are also to designate the Distt. Social Welfare Officer or an equivalent officer as Maintenance Officer, who can then represent a parent, on request, before a Maintenance or Appellate Tribunal.
- Abandonment of a Senior citizen is punishable with imprisonment up to 3 months, or fine up to Rs. 5000/-, or both.
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29 September, 2011
Legal Knowledge:- Plea Bargaining
- It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years.
- It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.
- The application should be filed by the accused voluntarily.
- An accused must file an application for Plea-bargaining in the court in which such offence is pending for trial
- The accused and prosecution both are given time to work out a mutually satisfactory disposition of the case, which may include giving compensation to the victim by the accused and other legal expenses incurred during pendency of the case.
- Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence.
- The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea-bargaining.
- The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment.
This principle is not applicable for hard crimes or serious crimes, therefore, Indian Law does not provides plea-bargaining for the offences in which (a) offence in punishable with death or imprisonment for life; (b) punishable with imprisonment for a term exceeding 7 years; (c) committed against socio economic conditions of the country; (d) offence committed against women and children below the age of 14 years.
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Manthan Award
Manthan Award is a first of its kind initiative in India to recognize the best practices in e-Content and Creativity across 8 South Asian countries. We continuously strive for identifying excellent innovations in ICT domain under broadly defined 15 categories. Manthan Award was launched in 2004, by Digital Empowerment Foundation in partnership with World Summit Award, Department of Information Technology,Govt. of India and various other stakeholders.
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06 September, 2011
Legal Knowledge:::Who is Stock Witness????
Legal Knowledge
Who is Stock Witness???
A Stock Witness is a person who is at the back and call of the police. He obliges police with this tailored testimony. Such a witness is used by the police in raid cases. Such witness are highly disfavoured by the judges.
Once it is proved that a certain witness examined by the prosecution is a stock witness of the police, the court would be justified in discarding his testimony. But that in itself is not enough to falsify the entire prosecution case. In such a case, it is the duty of the court to brush aside the testimony of the stock witness and to see if the remaining prosecution evidence is enough to sustain the conviction of the accused.
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Manthan Award is a first of its kind initiative in India to recognize the best practices in e-Content and Creativity across 8 South Asian countries. We continuously strive for identifying excellent innovations in ICT domain under broadly defined 15 categories. Manthan Award was launched in 2004, by Digital Empowerment Foundation in partnership with World Summit Award, Department of Information Technology,Govt. of India and various other stakeholders.
We invite all ICT based innovations to nominate themselves (before 10 september) for Manthan Award-2011. For more details Please Contact
Manthan Award South Asia Secretariat
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