K.D. Law Associates

22/04/2020

Be Responsible,
Stay Home,
Stay Safe.

26/01/2020

Wishing all of you a very happy Republic day.
Jai Hind

23/09/2019

State excercising it's power to compound the penalties under sec 200, Motor Vehicle Act.
Whether state is usurping in Center's domain?

06/10/2018

Poor handwriting of doctors obstructing administration of justice.

Pained to note how poor handwriting of doctors in medico-legal reports was obstructing the administration of justice at a time when judicial system was faced with ocular testimony of interested witnesses, the Lucknow bench of Allahabad High Court has fined three doctors for writing medico-legal repo...

06/09/2018

Landmark Judgement Update -
Date - 6-9-18
Supreme Court in the case of Navtej Singh vs UOI and ors, struck down the 157 year old law criminalising consensual acts of homosexuality and overturned its judgement in Suresh kaushal and ors vs Naz foundation, 2009.
Be******ty will still be an offence under section 377.
The bench headed by CJI Deepak Misra said that it was not about decriminalising of consesnsual sexual acts of homosexuality rather it was the case of identifying the rights of lgbt community.
Sexual orientation is fundamental right protected under article 19 and lgbt community has a right to live with dignity under article 21 of constitution of India.

02/09/2018

‘It is but natural to have certain minor variations in the evidence of eye-witnesses when a large number of people had gathered to assault a smaller group of people and which resulted in death of five persons and injuries to 24 persons.’
Observations by supreme court states that prosecution can prove their case if the testimony of witnesses is untainted and that their presence at the scene is prima facie proved. Minor variations should be ignored.
Menoka Malik and others vs The State of West Bengal and others

Read more at:

‘It is but natural to have certain minor variations in the evidence of eye-witnesses when a large number of people had gathered to assault a smaller group of people and which resulted in death of five persons and injuries to 24 persons.’ Reviving a criminal case related to a post-panchayat poll ...

02/09/2018

The Supreme Court on 21-8-2018 in Swapna Mohanty v. State of Odisha CIVIL APPEAL No.8425 of 2018 explained the concept of Necessary Party and Proper Party in Para 7 of the Judgment.

A person whose presence before a forum may be necessary in order to
enable it effectually and completely to adjudicate upon and settle all the questions involved in the dispute is a necessary party. A necessary party is one without whom no order can be made effectively.

A proper party is one in whose absence an effective order can be made, but whose presence is necessary for complete and final decision on the question involved in the proceedings.

30/08/2018

For Purpose Of SARFAESI Act, Addl DM/Addl CMM Has Judicial Powers Similar To That Of DM/ CMM: Bombay HC
[Read Judgment]

In an important judgment, the Bombay High Court has held that for the purposes of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, the District Magistrate or the Chief Metropolitan Magistrate has the same judicial powers. The judgment was passed by a bench of Justice BR Gavai and Justice SK Shinde in a writ petition filed by a company called Capital First Ltd.

Background

The petitioner company is a secure creditor within the meaning of Section 2(1)(zd) of the SARFAESI Act. Asserting its right to get applications filed under Section 14 of the said Act, before the Chief Metropolitan Magistrate at Esplanade Court, decided in a time-bound manner, the company has sought appropriate directions from the high court.

Section 14 of the SARFAESI Act requires the Chief Metropolitan Magistrate or District Magistrate to assist a secured creditor in taking possession of secured asset.
It has been stated in the petition that in view of amended provisions of Section 14 of the Act, the Chief Metropolitan Magistrate or District Magistrate is required to pass suitable orders within 30 days from the date of application, which period could be extended not exceeding in aggregate 60 days. However, when the high court directed the Chief Metropolitan Magistrate to ‘endeavour to dispose of’ petitioner’s pending applications,the CMM stated in his reply that as on August 9, 2017, some 924 cases were pending under the SARFAESI Act. Out of these cases, 509 were filed in 2017. Thus, as per directions of the high court to give preference to old cases over the new ones, the applications are yet to be decided, the CMM’s reply stated.
The court then asked lawyers for both parties to give suggestions within the framework of law for expeditious disposal of such applications.

and Final Judgment

Birendra Saraf appeared for the petitioner in the matter and HS Venegavakar appeared for the State of Maharashtra.

Saraf referred to Section 14 of the said Act and relevant provisions of the Code of Criminal Procedure, and submitted that Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are courts of the same status having the same and identical jurisdiction as far as criminal trials are concerned.

He also submitted that the intention of Legislature of providing speedy remedy for enforcement of security interest in time bound manner, can be best carried out by reading the expression ‘Chief Metropolitan Magistrate’ to also include the‘Additional Chief Metropolitan Magistrate’. In the case of State of Maharashtra v Shanti Prasad Jain, it was held that the Chief Metropolitan Magistrate and the Additional Chief Metropolitan Magistrate are courts of the same status having the same and identical jurisdiction so far as the trial of criminal cases is concerned.

The court accepted Saraf’s argument that on two separate occasions, the high court has issued a notification authorising the Additional Chief Metropolitan Magistrate to discharge all functions of the Chief Metropolitan Magistrate.

Thus, the court held:

1. The District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act.

2. The expression ‘District Magistrate’ and the ‘Chief Metropolitan Magistrate’ as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan Magistrate for the purposes of Section 14 of the SARFAESI Act.

21/08/2018

Motor Accident Claim : Absence Of Permit is statutory breach of policy condition absolving insurer, Holds SC.

The Supreme Court has held that plying of the transport vehicle in public without permit is a statutory breach and if such a vehicle gets involved in an accident, the insurer will be absolved of liability to pay.

The bench comprising Chief Justice Dipak Misra and Justice AM Khanwilkar was considering an appeal from the Punjab & Haryana High Court. The appeal was filed by the owner of the truck involved in the accident. The Motor Accidents Claims Tribunal found that the truck was being plied without permit, and held that statutory breach of policy conditions had occurred. Therefore, the insurer was not held liable.

Aggrieved, the owner filed appeal before the high court unsuccessfully. In the SLP filed in the Supreme Court, the owner contended that absence of permit was not a fundamental breach which led to the accident. It was also contended that application for permit was filed, and it was during its pendency that the accident had occurred.

Rejecting the contentions, the bench held as follows;