Adv. Shrikant Sabe

30/01/2025

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24/02/2024

“Law Should Not Result In Caste Hatred”- Allahabad HC Imposes ₹5 Lakh Cost On University Teacher For False Case Under SC/ST Act

The Allahabad High Court recently imposed a penalty of Rs. 5 lakhs on an Assistant Professor in the Department of Economics at the University of Allahabad for filing false cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, against her colleagues. The Court emphasized that the law must not result in caste-based hatred. It was dealing with an application relating to a case in which a Professor had to pay a heavy price for asking an Assistant Professor to take classes and teach properly.

Justice Prashant Kumar, in a Single Bench observation, highlighted that the SC/ST Act was enacted with the objective of protecting the underprivileged against atrocities and giving effect to constitutional ideals. However, it cannot be abused by unscrupulous persons or the police for extraneous reasons against other citizens. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. The Court must enforce such a guarantee. The law should not result in caste-based hatred. The Preamble to the Constitution, which incorporates the values of liberty, equality, and fraternity, must guide the interpretation of the law. It is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed.”

The Court emphasized the need to develop innovative tools and tactics to prevent injustice and violations of fundamental rights. It further stated that no procedural technicality should impede the enforcement of fundamental rights. These measures are crucial to ensure that justice is served and that fundamental rights are protected.

Brief Facts -

The person in question was falsely accused and had to undergo a trial for eight long years. This caused him immense humiliation and stigma, even though he was not at fault. Meanwhile, the accuser misused the SC/ST Act to threaten other seniors from taking any action against her. To address this issue, the person filed an application under Section 482 of the Criminal Procedure Code (CrPC) seeking the quashing of the charge sheet and the entire proceeding under Section 354C, 504, 506 of the Indian Penal Code (IPC) and under Section 3(2)(va) of the S.C./S.T. Act.

The individual in question was offered the position of Assistant Professor at the University of Allahabad, and began working there in July of 2013. However, during her probationary period, the Head of Department (HOD) reported that her performance was unsatisfactory and gave her a negative entry. This negative evaluation may have impacted the individual's standing within the university, and potentially affected her opportunities for career advancement.

The High Court has considered the facts and circumstances of the case and observed that even if the allegations made in the FIR are true, they do not constitute an offense against the applicant. The allegations leveled against the applicant in the FIR and statements under Sections 161 and 164 Cr.P.C. do not disclose any offense committed by the applicant. The prosecution has suggested the commission of an offense, but no such case is made out against the applicant. The whole criminal proceeding is filled with malice, and it has been carried out merely to take revenge against the Head of Department, who asked the complainant to perform her duties with diligence.

The Court stated that the complainant initiated the proceedings with the intention of seeking revenge against the applicant, due to a personal grudge against him.

If such activities are not stopped immediately, it will set a precedent for other members of the Scheduled Caste (S.C.) or the Scheduled Tribe (S.T.) community to also engage in insubordination towards the Head of Department, leaving them unable to take any action. If a warning is given to them, cases may be filed against them under the S.C./S.T. Act.

The Court observed that it is important for all professors, including subordinates, to be well-prepared and teach effectively in their classes. It was noted that in a particular case, a professor had filed a complaint against the Head of Department despite being advised to improve her teaching skills. The Court concluded that this complaint was a clear misuse of the provisions of the SC/ST Act and an abuse of the legal process.

The issue of filing false and frivolous cases under the S.C./S.T. Act is a serious menace that has been dealt with strictly by various High Courts and the Hon’ble Supreme Court. Recently, a well-educated lady was found to have abused the provisions of law for personal gain by filing a complaint that was nothing but a pure abuse of process of law. This resulted in the applicant and his colleagues, who are highly respected Professors, running from pillar to post, from Police Station to Court, to save themselves from the false allegations. Such vexatious proceedings should not be allowed to continue, and anyone engaging in such activities should face strict consequences.

The High Court, in this case, imposed an exemplary cost of Rs. 5 lacs on O.P. no.2 for abusing the process of law by filing frivolous cases only for personal vengeance and personal gains. This amount should be given to the applicant forthwith after making deductions from the salary of O.P. no.2 as well as other benefits given by her employer.

This judgment serves as a strong message that filing false and frivolous cases will not be tolerated and that the consequences for doing so will be severe. The reputation and public image of the victim in such cases are tarnished, and they suffer financial losses. Thus, it is essential to curb such activities to maintain the sanctity of the law.

18/02/2024

Right To Be Defended & Right To Appear Are Fundamental Rights Of Litigants & Lawyers.

The Supreme Court annulled a Resolution by the Mysore Bar Association, which prohibited its members from filing Vakalatnama or representing the petitioner in a case.

The bench stated that the right to defend and the right to appear for a client are Fundamental Rights of a lawyer to practice his profession.

The bench noted that the case has been pending since 2019 and the Mysore Bar Association failed to appear despite repeated notices.

Hence, the bench of Justice Vikram Nath and Justice Satish Chandra Sharma, while nullifying the Resolution, remarked, “We have proceeded ex-parte in this matter. The impugned Resolution is untenable in our view”.

“The right to defend oneself is a Fundamental Right under Part III of the Constitution of India and the right to appear for a client is also a Fundamental Right as it is part of a lawyer’s profession…”, the bench added.

The petitioner was represented by AOR Lakshmi Raman Singh and the respondent by Senior Advocate Anand Sanjay M Nuli.

The petition under Article 32 of the Constitution challenged a Resolution dated March 16, 2019 by the Mysore Bar Association, which forbade its members from filing a vakalatnama for the petitioner.

The Supreme Court, while admitting the petition, stayed the Resolution through an order dated October 6, 2021.

Earlier, on November 14, 2022, the Court issued notices to respondent No. 3-Mysore Bar Association, to be served through the Commissioner of Police, Mysore, but the Bar Association did not show up.

Therefore, the bench censured the Resolution and disposed of the writ petition.

17/02/2024

The Supreme Court heard on Thursday that unlike doctors and hospitals, who can advertise their work, lawyers or legal practitioners are not allowed to solicit or promote their services, and therefore, they should not be subject to the Consumer Protection Act.

Senior advocate Narendra Hooda, representing bar bodies and other individuals, explained to a bench of justices Bela M Trivedi and Pankaj Mithal that a lawyer’s primary obligation is to help the court in resolving legal issues, not to serve his client.
The bar bodies, such as the Bar Council of India, Delhi High Court Bar Association and Bar of Indian Lawyers, and other individuals have filed a series of petitions challenging a 2007 decision of the Consumer Disputes Redressal National Commission (NCDRC), which declared that advocates and their services fall under the scope of the Consumer Protection Act, 1986.

Responding to the court’s remark made on Wednesday that if doctors can be held liable for poor service and negligence and deficiency in service, then why lawyers cannot be held accountable for the same, Hooda said, “A doctor’s clinic is considered as a business entity like any big hospital, which can publicize itself. There is no restriction on them. But there is a restriction for lawyers to advertise their work. They cannot seek work and cannot take a share in the property involved in the case as the payment for their service under the Advocates Act of 1961.”

Hooda criticized the NCDRC verdict, saying that lawyers are different from doctors or any other professionals because of the limitations imposed by the 1961 law.
He added that there is already a mechanism for a litigant to complain to the Bar Council of India about professional misconduct, besides the option of going to a court of law.

“It is not that lawyers are immune from a complaint filed by a litigant. A remedy for loss can be sought in the civil court,” Hooda said, adding that the Consumer Protection Act of 1986 was not in existence when the Advocates Act came into force in 1961.

He added that the 1986 law was designed with a completely different purpose to protect the interest of even a small consumer from the powerful corporations.

“The Consumer Protection Act was designed in such a way that the services provided by a lawyer do not match with any other services provided in other professions,” the senior lawyer said.
He added that under the 1986 law, a consumer can file a complaint by just writing a two-page letter and the consumer forum has to decide on it on merit even in his absence, whereas a litigant has to hire a lawyer to fight a court case and sign a “vakalatnama”, giving the lawyer the authority to argue the case on his behalf.

In its 2007 judgment, the Consumer Commission ruled that advocates are covered by the Consumer Protection Act and can be sued in a consumer court by their clients for any deficiency in service.
The national consumer forum’s decision had stated that the legal services offered by lawyers would come under the definition of section 2(1)(o) of the 1986 Act.

Section 2(1)(o) of the Act defines the word “service” to mean a “service of any description, which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”.

"Undisputedly, lawyers are rendering service. They are charging fees. It is not a contract of personal service. Therefore, there is no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986," the NCDRC had held.

The top court, however, stayed the August 6, 2007 verdict of the NCDRC in April 2009.

15/02/2024

Did you know that the Domestic Violence Act places a greater emphasis on providing immediate help to victims of domestic violence through maintenance rather than punishing the aggressor with imprisonment for non-payment of maintenance?

The Delhi High Court has noted that the primary objective of the DV Act is to protect, rehabilitate, and uplift the victims of domestic violence. It's heartening to see that the law is focused on supporting those who are most in need of help and care.

Analysis, Law, and Decision
The Court opined that in the present case due to transfer of cases from one State to another, a pending application under Section 482 of CrPC became infructuous and was withdrawn from one High Court and was immediately thereafter filed before the present Court, therefore the present petition was maintainable.

The Court noted that in the present case, vide impugned order 12-03-2019, the husband was summoned as accused under Section 31(1) of the DV Act pursuant to a compliant filed by the wife whereby she alleged that despite their being orders of the Magistrate and Sessions Court granting her an interim maintenance, the husband had failed to comply with the same and thus he was liable to be summoned and punished under Section 31(1) of the DV Act and further under Section 498-A of the IPC.

The court's verdict was an absolute game-changer! As per the statutory framework of the DV Act, granting maintenance or interim maintenance under Section 20 of the DV Act as monetary relief to the aggrieved women is a must, and it would have to be enforced in the most exciting manner as provided under Section 20(6) of the DV Act or otherwise as per provisions as per the provisions of CrPC including manner of enforcement of orders passed under Section 125 of the CrPC.

In a recent court ruling, the judge referred to several cases to support their decision. These cases were
• Velayudhan Nair v. Karthiayani from 2012,
• Kanaka Raj v. State of Kerala from 2009,
• Kanchan v. Vikramjeet Setiya from 2012,
• Francis Cyril C. Cunha v. Smt. Lydia Jane D. Cunha from 2015,
• Manoj Anand v. State of U.P. from 2012,
• S. Jeeva Ashok v. Kalarani from 2015, and Suneesh v. State of Kerala from 2012. The judge carefully considered the arguments and precedents set forth in each of these cases to arrive at their decision.

In a recent case, it was held that Section 31 of the DV Act could not be used for a breach of an order that granted maintenance. The court opined that Section 31 of the DV Act is solely concerned with the breach of a ‘protection order’ or ‘interim protection order’. An order granting maintenance in an application filed under Section 12 of the DV Act, which is an order passed under Section 20 of the DV Act, cannot be considered under the term ‘protection order’ as used in Section 31 of the DV Act.

The Court stated that the Domestic Violence Act (DV Act) includes various categories of reliefs and orders. For instance, the term "protection order" is specifically defined in Section 2(o), and its scope is described in Section 18. On the other hand, monetary relief is defined under Section 2(k), and its scope is explained in Section 20, which is unique in nature. Therefore, while deciding on the issue in question, the Court considered the intention of the legislature behind creating separate provisions for different reliefs under the DV Act.

It is crucial to thoroughly analyze and scrutinize the objectives and goals that were aimed to be achieved through the enactment of the DV Act. The legislature recognized that although criminal action was available for women experiencing domestic violence in matrimonial setups, as provided under Section 498 of the IPC, it would result in the punishment of the accused without any immediate remedies for the specific needs and livelihood challenges of the woman. The Court expressed its opinion in this regard. that in response to this gap in legal provisions, the DV Act was enacted to offer certain civil remedies to the victims of domestic violence and these remedies encompassed an array of protective measures, residence orders, and monetary reliefs, designed to address the multifaceted nature of abuse. Therefore, the aim of the DV Act was to provide protection, rehabilitation and upliftment of victims of domestic violence, in contrast to sending the aggressor to prisons. The Court opined that it could be concluded that the focus of the DV Act was on providing immediate and effective relief to victims of domestic violence by way of maintenance or interim maintenance orders, and the idea was not to immediately initiate criminal proceedings against the person for non-payment of maintenance.

According to the Court's opinion, a person cannot be summoned under Section 31 of the DV Act if they fail to comply with a monetary order for payment of maintenance passed under Section 20 of the same Act. Therefore, the petitioner in this case cannot be summoned as an accused under Section 31 of the DV Act and the order dated 12-03-2019 has been quashed.

A petition was filed in the Delhi High Court under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC’). The petition sought to quash the summon order dated 12-03-2019, which was passed under Section 31(1) of Protection of Women from Domestic Violence Act, 2005 (‘DV Act’). The summon was issued for non-compliance of interim maintenance.

Justice Swarana Kanta Sharma opined that the DV Act is aimed at providing protection, rehabilitation, and upliftment to victims of domestic violence, rather than punishing the aggressor by sending them to prison. The Court held that a person could not be summoned under Section 31 of the DV Act for non-compliance of a monetary order passed under Section 20 of the DV Act. The impugned order dated 12-03-2019 was quashed by the Court.

Background
A marriage was solemnized between the petitioner-husband and the respondent-wife on 30-04-2015. The wife later filed a complaint, leading to the registration of an FIR under various sections of the Penal Code, 1860 and the Dowry Prohibition Act, 1961.

The wife also filed an application under Section 12 of the DV Act and an application for interim maintenance under Section 23 of the DV Act. The Judicial Magistrate directed the husband to pay an interim maintenance of Rs. 35,000 to the wife on 10-05-2018, which was later modified on 01-02-2019. According to the new order, the husband was directed to pay Rs. 45,000 to the wife and Rs. 55,000 per month to their daughter.

The wife filed an application under Section 31(1) of the DV Act against the husband for non-compliance of the order dated 01-02-2019. Summons were issued on 12-03-2019, but the husband challenged them under Section 482 of the CrPC and the summons were stayed.

The application was later withdrawn under Section 482 of the CrPC from the Allahabad High Court, and the case was transferred from Uttar Pradesh to Delhi. The husband then approached the present court to challenge the order dated 12-03-2019 passed under Section 31(1) of the DV Act.

The husband argued that since the wife's grievance was that the order granting interim maintenance under Section 20 of the DV Act read with Section 23 of the DV Act was not being complied with, he could not be summoned under Section 31 of the DV Act. Section 31 only covers cases of breach of protection or interim protection order, and it does not cover monetary reliefs.

[Anish Pramod Patel v. Kiran Jyot Maini, 2023 SCC OnLine Del 7605, decided on 01-12-2023]

15/02/2024

Did you know that recording phone conversations without someone's consent can actually violate their right to privacy? It's true! In fact, a recent ruling by the Chhattisgarh High Court stated that such recordings cannot be used as admissible evidence. This is an important reminder to always obtain consent before recording any phone conversations.

Hey there! Something interesting happened recently. The Chhattisgarh High Court made a ruling on a maintenance case appeal, filed under Section 125 of the Criminal Procedure Code. The case involved a mobile phone conversation recorded without consent. The court held that such recordings cannot be brought into evidence.

The court relied on several past judgments and held that recording phone conversations without consent is a clear violation of the right to privacy guaranteed under Article 21 of the Constitution. The ruling came after a 38-year-old woman challenged a Family Court order from October 2021. The order had allowed her 44-year-old husband, a police constable, to re-examine her on the grounds of certain conversations recorded on a mobile phone.

The woman’s counsel argued that the order of the Family Court infringed upon her client’s right to privacy, citing previous judgements of the Supreme Court and the High Court of Madhya Pradesh. After hearing both sides, High Court judge Rakesh Mohan Pandey held that it was apparent that the respondent had recorded the conversation of the petitioner without her knowledge. This amounted to a violation of her right to privacy guaranteed under Article 21 of the Constitution.

The court further held that the Right to Privacy is an essential component of the Right to Life envisaged by Article 21 of the Constitution. Therefore, in the opinion of the court, the learned Family Court had committed an error of law in allowing the application under Section 311 of the CrPC along with the certificate issued under Section 65 of the Indian Evidence Act. As a result, the order passed by the learned Family Court has been set aside.

15/02/2024

As per Indian culture, a married woman must serve aged mother-in-law: Jharkhand High Court

According to Indian culture, a married woman is expected to serve her aged mother-in-law and she must adhere to the same to preserve the culture, the Jharkhand High Court recently said [Rudra Narayan Ray vs Piyali Ray Chatterjee].

Single-judge Justice Subhash Chand said that it is obligatory on the part of a wife to serve her husband's mother and maternal grandmother and she should not insist on living separately from them.
The Court relied upon Article 51A of the Constitution to buttress its point.
"In the Constitution of India under Article 51-A, the fundamental duties of a citizen are enumerated in clause (f), it is provided 'to value and preserve the rich heritage of our composite culture.' It is the culture in India to serve the old aged mother-in-law or grandmother-in-law, as the case may be, by the wife, in order to preserve this culture," the Court underlined.

Hence, it held that a woman should not pressurise her husband to leave his mother.

In its judgment, the Court invoked Hindu religious texts including also Manusmriti to emphasise the importance of women in family.

The judge, while referring to Yajurveda, said, "O woman you do not deserve to be defeated by challenges. You can defeat the mightiest challenge. Defeat the enemies and their armies you have a valour of thousand (Yajurveda).

Further, the court invoked verses in Manusmriti stating - Where women of the family are miserable, the family is soon destroyed but it always thrives where the women are contended.

These observations were made by the court while hearing an appeal filed by a man challenging an order of a family court in Dumka, which ordered him to pay ₹30,000 as maintenance to his estranged wife and ₹15,000 to their minor son.

The woman alleged that her husband and in-laws subjected her to cruelty and tortured her for dowry.
On the other hand, the husband alleged that the wife pressurised him to live separately from his mother and grandmother. He pointed out that the wife would often pick up quarrels with the two old women in the house and kept going to her parental house without informing him.

The Court noted that the evidence on record indicated that the wife was pressuring the husband for living separately from his mother and grandmother without any valid grounds.

Justice Chand referred to a book titled Introduction to Family Life Education authored by Prof. Teresa Chacko, which details the role of a wife in the family and noted that the primary issue between the now estranged couple was that the wife doesn't want to serve the aged mother-in-law and grandmother-in-law, who are 75 years and 95 years old, respectively.

"She creates pressure on her husband to live separate from his mother and grandmother. It is the very reason, this ground is not found sufficient that's why the legislature whole enacting section 125(4) of the CrPC has provided one of the grounds for denial of maintenance - if the wife refuses to reside with the husband without any reasonable cause," the judge observed.

03/11/2023

https://www.shrikantsabe.com/2023/10/Guidelines%20for%20Effective%20Functioning%20of%20Consumer%20Disputes%20Redressal%20Forums.html

A comprehensive guidelines serve as a roadmap for the efficient functioning of consumer disputes redressal forums.

25/04/2023

Rules for Gold

20/04/2023

https://www.shrikantsabe.com/2023/04/two-finger-test.html

Two Finger Test Case where the Supreme Court reversed the High Court's acquittal of the accused who had r***d and set a woman on fire.

19/04/2023

The EWS Reservation Case and the Constitutional validity of the 103rd Amendment Act, which provides 10% reservation to the Economic Weaker Section of the General Category. Discover the basis of the challenge and the Supreme Court's decision in this case.

EWS Reservation Case and the Constitutional validity of the 103rd Amendment Act, which provides 10% reservation to the Economic Weaker Section of GC

18/04/2023