Legal Trouble Solutions LLP.

30/03/2022

498A IPC - Criminal Complaint Cannot Continue After Settlement Between Parties In Marital Disputes :

The Supreme Court has held that a criminal complaint made u/s 498A and Dowry Prohibition Act cannot continue if the parties have amicably settled the matter. The order passed by a bench of Justices A.M.Khanwilkar and Dinesh Maheshwari found that the High Court despite the arrangement arrived at between the parties declined to quash the proceedings. It was held that the High Court should..

498A IPC - वैवाहिक विवादों में पक्षों के बीच समझौते के बाद आपराधिक शिकायत जारी नहीं रह सकती:

सुप्रीम कोर्ट ने माना है कि धारा 498A और दहेज निषेध अधिनियम के तहत की गई एक आपराधिक शिकायत जारी नहीं रह सकती है यदि पक्षों ने मामले को सौहार्दपूर्ण ढंग से सुलझा लिया है। न्यायमूर्ति एएम खानविलकर और न्यायमूर्ति दिनेश माहेश्वरी की पीठ द्वारा पारित आदेश में पाया गया कि उच्च न्यायालय ने पक्षों के बीच व्यवस्था के बावजूद कार्यवाही को रद्द करने से इनकार कर दिया। माना जा रहा था कि हाईकोर्ट...

Rajiv Kumar Sharma and Anr. vs. State of Uttar Pradesh and Anr.

Criminal Appeal no. 1599 of 2019

10/09/2020

https://chat.whatsapp.com/FlZEklJog6fEqkamh0YIUd

Hi Respected Citizens,

We have gone one inch closer to solve all the legal querries of the person in need on our what's app group Feel Free to join but only for the legal querries and nothing else.....

WhatsApp Group Invite

28/04/2020

:::A Wrong Post can get you in Trouble:::

In our Constitution, a right to freedom of speech is given under Article 19(1)(a). It states that every citizen shall have the right to freedom of speech and expression. Protection of certain rights are given to every citizen but it does not mean that you misuse this right to hurt others religion. Article 19(2) defines all the exception when the freedom of speech ad expression won’t work. Article 19 (1)(a) gives right of freedom of speech and expression subject to ‘reasonable restriction”. Reasonable restrictions can be for preserving public order, decency or morality.

Generally Speaking, article 19 gives right to freedom of speech but you can not speak against anyone religion as this can hurt our religion and can lead to indecency. And the government can make any law so as to preserve public order, decency, and morality.

There have been so many instances where people have shown hatred towards each other’s religion especially on social media like Facebook, Tweeter, etc.

People have landed in jail before of a Facebook post.

This raised a question on whether there is a right of freedom of speech or not in India.

Know the Laws related to social media and religion.

Section 153A of Indian Penal Code states that whoever promotes enmity between different groups of religion and doing acts prejudicial to maintenance of harmony will face punishment.
Whoever,by words, either spoken or written or by signs or by visible representations or otherwise promotes religion disharmony or feelings of enmity, hatred or ill-will between different religious or
Commits any act which is prejudicial to the maintenance of harmony between different religious and which disturbs or is likely to disturb the public tranquillity shall be punished with imprisonment which may extend to three years or with fine or with both.

:: Section 295A of Indian Penal Code::::

Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

Whoever with deliberate and malicious intention of outraging the religious feelings of any class of citizen of India by words, or by signs or by visible representations insults to attempts to insult the religions or the religious belief of that class shall be punished with imprisonment of either description of a term which may extend to 3 years or with fine or with both.

This provision was introduced in 1927 as to protect the religious feeling which was hurt by a published a book called “Rangila Rasul”. The book contained the marriage and s*x life of Prophet Muhammed. There was no provision against the insult of religion, so the publisher was released. But the published was killed later by Ilm-ud-din. The killer was honored and called Shaheed. The Indian Muslim demanded provision against the insult of religious feelings. Hence, section 295A was introduced by the government.

Also, this provision was declared constitutionally valid in Ramji Lal Modi v State of UP, a five-judge bench of the supreme court upheld its constitutionality under Article 19. That means that now for making it unconstitutional, a seven-judge bench is required. To make it unconstitutional means you should have a strong and compelling reason.

:::Section 298 of the IPC:::
Any person uttering words etc with deliberate intent to hurt the religious feelings of any person will be punished under this section. Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

::::Conclusions:::

Hate Speech on Social Media is the easiest way to show hatred toward other’s religion. But punishment that is given under the IPC makes it difficult. Showing hatred towards someone’s religion is not acceptable anywhere in the world. If the someone is following a religion then let we can’t stop them as the Constitution of India allows them to follow
We should not talk about or criticize anyone’s religion on Social Media. Instead respect each others religion and Individuality...

SPREAD LOVE, NOT HATRED.

24/04/2020

How is CHIEF JUSTICE OF INDIA Appointed??

The Constitution of India, 1950 prescribes the "Establishment and Constitution of Supreme Court" under Article 124.

According to Article 124(1) the Supreme Court consists of Chief Justice of India and such other judges. Under Article 124(2) the conditions for appointment of the judges of the Supreme Court including the CJI are:

"Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal…"
"…after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose…"
"…and shall hold office until he attains the age of sixty-five years."

The first proviso to Article 124(2) ("Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.") clarifies the assumption of inclusion of CJI in the phrase "Every Judge of the Supreme Court" in it. Under Article 124(3), the eligibility criteria to be considered for appointment as a Judge of the Supreme Court including CJI are:

Citizen of India

Either of the following:

At least five years a Judge of a High Court or of two or more such Courts in succession.

At least ten years an advocate of a High Court or of two or more such courts in succession.

In the opinion of the President, a distinguished jurist
Article 124(6) prescribes post-appointment mandates for the Judge of the Supreme Court including CJI i.e. "Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."

According to the "Memorandum Showing the Procedure for Appointment of the Chief Justice of India and Judges of the Supreme Court of India", published on the official website of Department of Justice, the following are the requisites to be appointed as CJI:

Senior-most Judge of the Supreme Court
Considered fit to hold the office – here the consultation with other Judges as envisaged in Article 124 (2) of the Constitution would be made for appointment of the next Chief Justice of India.

What is meant by senior-most judge?

Seniority is decided on the basis of experience in the Supreme Court and not according to age of the judges. So, the date of induction to the Supreme Court usually settles the seniority. But, in cases where date of induction to the Supreme Court is same then whoever takes the oath earlier becomes senior for this purpose. If the second filter also falls on same day then, the experience.
Also the appointments made directly from the bar are taken as subservient to the appointments made from bench for this purpose.
So, the outgoing CJI submits its recommendation for the next CJI (which is generally the senior-most judge of the Supreme Court) to the Union Minister of Law, Justice and Company Affairs at least a month in advance after consultation with the other senior judges of the Supreme Court.
Then the recommendations are put by the Union Minister of Law, Justice and Company Affairs before the Prime Minister who advises the President in this regard. The President appoints the Chief Justice of India till the age of retirement under his seal.

Whether "seniority rule" is mandatory to be observed?

According to Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268) "the senior-most Judge of the Supreme Court considered fit to hold the office." And consultation under Article 124(2) is required only "if there be any doubt about the fitness of the senior-most Judge to hold the office, which alone may permit and justify a departure from the long-standing convention."

Why Senior-most Judge of the Supreme Court has to be only appointed as CJI?

The rule of seniority was necessitated to be observed by all the then serving judges in the Supreme Court in 1951 after the passing away of the then Chief Justice of India H.R.Kania. They unanimously put the threat of resignation in case the Government does not observe it. The rule of seniority is an assurance of independence of judiciary by reducing the scope of the discretionary powers of the government.

Was there any deviation from the conventional rule of seniority for the appointment of the CJI?

On April 25, 1973, a day after the judgment of Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225) which made the legislative and executive actions of the government susceptible to the test of 'basic structure' vide majority of seven among thirteen judges, J. Ajit Nath Ray, one among the six dissenters in this case was appointed as Chief Justice of India superseding the three senior judges J.M. Shelat, K.S. Hegde and A.N. Grover (they belonged to the majority in this case). To which, Former Attorney General for India C.K. Daphtary remarked "the boy who wrote the best essay won the first prize". And Former Chief Justice Mohammad Hidayatullah termed it as a drive of "not forward looking judges but judges looking forward to their future".

On January 29, 1977, the majority player in Kesavananda Bharati case and the lone dissenter in Additional District Magistrate, Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207)' J. Hans Raj Khanna, the then senior-most judge of the Supreme Court of India, was superseded by J. Mirza Hameedullah Beg. The case had affirmed the right to judicial remedy for habeas corpus even during emergency. The Former Chief Justice M.N. Venkatachaliah said the decision deserved to be "confined to the dustbin of history".

24/04/2020

"Force Majeure" or "Act of God"

This standard clause present in most contracts, which is not commonly invoked, is in the minds of most corporates and commercial lawyers, as economic activities and commercial transactions world over have come to a standstill in the wake of COVID-19 pandemic.

In simple terms, 'Force Majeure' clause is a provision in a contract that exempts a party from performing his contractual obligations which have become impossible or impracticable due to an event or effect which the parties could not have foreseen or controlled. This clause is usually couched in general, inclusive terms to cover unforeseeable incidents such as natural calamities, war, sudden change of government policies etc.

It will be interesting to note that the Indian Contract Act, 1872 - the 148 year old law governing contracts in India - does not expressly refer to 'Force Majeure'.

However, there are two Sections which can become relevant in such situations - Section 32 and Section 56.

Section 32 deals with "contingent contracts", in which the performance of the contractual obligations is contingent on the happening or non-happening of an event. If the event becomes "impossible", the contract becomes "void" under this Section...

27/07/2019

Rights of an Accused in Judicial Custody..

Right To Know The Grounds of Arrest: As per Section 50(1) of Cr.P.C., where a person arrested without warrant is entitled to know the full particulars of offence for which he is being arrested and where a person is arrested with warrant, he must be notified the particulars of such warrant, or even show such warrant if needed. Sec. 75 of Cr.P.C.

·Right to have Bail: Any person who is arrested without a warrant and is accused of a bailable offence has to be informed by the police officer that he is entitled to be released on bail on payment of the surety amount.

·Right to Be Taken before a Magistrate without Delay: Irrespective of the fact, that whether the arrest was made with or without a warrant, the person who is making such arrest has to bring the arrested person before a judicial officer without any unnecessary delay. By Sec 56 and 76 of the code, an accused has to be produced before a magistrate within the 24 hrs.

·Right to free, fair and speedy trial: As justice delayed is justice denied, the concept of speedy and expeditious trial was introduced by which the accused person is given fair and impartial justice quickly.

·Right to Consult a Legal Practitioner: This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which cannot be denied in any case. Section 50(3) of the Code also lays down that the person against whom proceedings are initiated has a right to be defended by a pleader of his choice.

·Right of Free Legal Aid: A duty is imposed on all magistrates and courts to inform the indigent accused of his right to get free legal aid.It is clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction and sentence.

·Right to Be Examined by a Medical Practitioner: Section 54 of Cr.P.C. enumerates this right. If requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

·Right to privacy and protection against unlawful searches: The police officials cannot violate the privacy of the accused on a mere presumption of an offence. The property of an accused cannot be searched by the police without a search warrant.

·Right to be present during trial: Section 273 of the Code provides that all evidence and statements must be recorded in presence of the accused or his criminal lawyer.

·Right to get Copies of Documents: The accused has the right to receive copies of all the documents filed by the prosecutor in relation to the case.

·Right to be present at the trial: The accused person has the right to be present during his trial and have testimony presented in front of him.

·Right to cross-examination: The accused has the right to be cross-examined by the prosecutor to prove his innocence.

Right to Appeal: The rights of arrested persons include the right to file an appeal against his conviction in a higher court.

·Right to Humane Treatment in Prison: The accused has a right to have all his human rights when in prison and be subjected to humane treatment by the prison authorities.

23/05/2019

The object of grant of maintenance is to afford a subsistence allowance to the wife, who is not able to maintain herself.

Delhi High Court has observed that even if maintenance under Section 125 CrPC was granted, the wife is entitled for maintenance for domestic violence though there can be an adjustment qua earlier maintenance.

A bench of Justice Sachdeva has passed the order in the case titled as VIKAS BHUTANI vs STATE on 17.05.2019.

Petitioner impugns order dated 29.05.2017 whereby interim maintenance has been assessed by the Trial Court. On an application filed the respondent under Section 12 of The Protection of Women from Domestic Violence Act, 2005, an amount of Rs.40,000/- has been fixed as interim maintenance. Learned counsel for the petitioner submits that the Trial Court has erred in not appreciating that the respondent had already filed an application under Section 125 Cr.P.C and interim maintenance of Rs.15,000/- was assessed in the said application and petitioner had continued to pay the said amount of Rs.15,000/- per month.

High Court observed “I am unable to accept the contention of the learned counsel for the petitioner. One has to look at the nature of the maintenance
awarded”.

It further observed “The object of grant of maintenance is to afford a subsistence allowance to the wife, who is not able to maintain herself, then the award normally should be from the date of the application. For the court to award maintenance from the date of the order there have to be compelling circumstances for the court to take such a view. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive”.

High Court then directed “Accordingly, petitioner shall pay maintenance at the rate of Rs. 40,000/- per month from the date of filing of the application i.e. March, 2014. Petitioner would be entitled to an adjustment of the amount that petitioner has already paid in terms of the order passed in the application under Section 125 Cr.P.C. and the interim orders passed by this court”.

04/03/2019

Capturing photos of someone in one's private premises is illegal if without permission. ... But if you used someone's photo for some commercial purpose or some fun activity or for any purpose which the person whose photo is taken may think wrong then the person has the right to Sue you for Defamation.
Section 66E in The Information Technology Act, 2000

66E Punishment for violation of privacy. -Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both. Explanation. -For the purposes of this section-

(a) "transmit" means to electronically send a visual image with the intent that it be viewed by a person or persons;

(b) "capture", with respect to an image, means to videotape, photograph, film or record by any means;

(c) "private area" means the naked or undergarment clad ge****ls, p***c area, buttocks or female breast;

(d) "publishes" means reproduction in the printed or electronic form and making it available for public; e) "under circumstances violating privacy" means circumstances in which a person can have a reasonable expectation that;-

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place. ]

03/02/2019

Union Budget 2019 : Full Tax Rebate For Annual Income Up To Rs 5 Lakhs Announced

Union Finance Minister Piyush Goyal announced in the budget speech in Parliament today that full income tax rebate will be given for individual annual income up to Rs. 5 lakhs for the financial year 2019-2020. "Individuals with taxable income of Rs.5 lakh annually will get full tax rebate", the minister said. This is estimated to benefit about Rs. 3 crores middle class tax payers. Individuals having gross income up to Rs. 6.5 lakhs will not need to pay any tax if they make investments in providential funds and prescribed equities, he said

Other key announcements:
TDS threshold limit for rental income raised from Rs.1.8 lakh to 2.4 lakh Benefit of rollover of capital gains under Section 54 of Income Tax Act increased from investment in one residential house to two for those with capital gains up to Rs. 2 crores.

Standard deduction for salaried persons raised from Rs.40,000 to Rs.50,000 Interest income up to Rs.40,000 from bank deposits exempt from TDS, instead of the present limit of Rs.10,000

Gratuity limit increased The FM also announced that the gratuity limit for the salaried class would be increased from Rs. 10 lakhs to Rs 20 lakhs. EPF limit increased The limit of Employment Provident Fund has been increased from Rs.2.5 lakh to Rs. 6 lakh in case of demise of employee "To ensure safety to the family of a salaried person, if he or she dies prematurely, the government of India proposes to increase EPF limit from Rs.2.5 lakhs to Rs.6 lakhs", Goyal said. ESI Limit increased The limit for ESI eligibility is to be increased from Rs. 15,000 to Rs.21,000. Pension scheme for workers in unorganized sector.
Scheme for monthly pension of Rs.3000 for workers in unorganized sector, after the age of 60 years, announced.

17/01/2019

Punishment of R**e in India.

R**e is a serious problem in modern society. The number of r**e cases is increasing day by day despite the fact that it is morally as well as ethically wrong. R**e is considered force methods of overpowering. For various reasons, women have usually being targeted as r**e victims all over the world. R**e is a type of s*xual assault commenced by one or more persons against another person without the consent of that person. This act may be carried out by physical force or under threat or manipulation etc.

Section 376 in The Indian Penal Code describes punishments for r**e.

376. Punishment for r**e.—

(1) Whoever, except in the cases provided for by sub-section (2), commits r**e shall be punished with imprisonment of either des c r i p tion for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women r**ed is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either des c r i p tion for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of fewer than seven years.

(2) Whoever,—(a) being a police officer commits r**e—

(i) within the limits of the police station to which he is ap­pointed; or


(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits r**e on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s insti­tution takes advantage of his official position and commits r**e on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits r**e on a woman in that hospital; or

(e) commits r**e on a woman knowing her to be pregnant; or

(f) commits r**e on a woman when she is under twelve years of age; or

(g) commits gang r**e, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either des c r i p tion for a term of less than ten years.

12/09/2018

*Supreme Court decision*

THIS IS AN IMPORTANT MESSAGE IN RETIRED BANKERS.

Dear friends,

It is surprising that a land mark judgement delivered by the Supreme Court of India on 01/ 07/ 2015, Civil Appeal no. 1123 of 2015 has gone unnoticed and except for a brief letter from Shri S R Sen Gupta to IBA, no other union has taken any steps.

The salient features of the judgement:

1. The bench has authoritatively ruled that Pension is a right and the payment of it does not depend upon the discretion of the Government. Pension is governed by rules and a Government Servant coming within those rules is entitled to claim pension.

2. The judgement has recognised that the revision of pension and revision of pay scales are INSEPARABLE.

3. The bench has reiterated that on revision the Basic pension cannot be less than 50% of the Basic Pension in the minimum of the Pay Band in the revised scale corresponding to the pre-revised scale.

4. The government CANNOT take a plea of financial burden to deny legitimate dues of the pensioners.

5. The Government SHOULD AVOID unwarranted litigation and not to encourage any litigation for the sake of litigation.

6. When pension is upheld to be a right and NOT A BOUNTY, as a corollary to the averment that revision of pension and revision of pay scales are INSEPARABLE, upgradation of pension is also a RIGHT AND NOT A BOUNTY.

THE JUDGEMENT IS BASED ON THE DECISION ON D S NAKARA CASE.

The judgement is very clear and I wonder how no one has noticed the important aspects and why no one has taken up the matter with the Govt.

Why no one has reacted to the judgement is surprising and perplexing.

*Dear Pensioners!*

Forward this msg to the one in need

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