While very firmly reiterating the law laid down in the case of Shabana Bano vs Imran Khan, the Allahabad High Court in a recent, remarkable, robust and rational judgment titled Razia vs State of UP in Criminal Revision Defective No. – 475 of 2008 that was delivered finally on April 6, 2022 has observed that a divorced Muslim woman shall be entitled to claim maintenance from her husband under Section 125 CrPC even after the expiry of the period of iddat as long as she does not remarry. The single Judge Bench comprising of Justice Karunesh Singh Pawar observed so while allowing a revision plea filed against the judgment and order passed by the Additional Sessions Judge, Pratapgarh in May 2008, modifying the order of trial Court passed in January 2007. Very rightly so!
(C.M. APPLICATION NO. 83077 OF 2008 )
To start with, it is stated in para 1 that, “The application seeks condonation of delay in filing the criminal revision.”
It is stated in para 3 that, “None appears for respondent no.2.”
It is then stated in para 4 that, “Since cause shown in the affidavit filed in support of application for condonation of delay in filing the instant revision is satisfactory, the application for condonation is allowed and delay in filing the instant revision is hereby condoned.”
(ORDER ON THE MEMO OF REVISION)
Quite glaringly, the Bench reveals in para 2 that, “None appears for respondent no.2. However, learned counsel for the revisionist submits that the present revision is pending since 2008 and even objections have not been filed by respondent no.2 and the matter has never been argued by respondent no.2.”
To put things in perspective, the Bench then points out in para 3 that, “The present revision has been filed against the judgment and order dated 11.4.2008 passed by learned Additional Sessions Judge, Court No.5, Pratapgarh passed in Criminal Revision No.54 of 2007, whereby the order of trial Court dated 23.1.2007 has been modified. The maintenance allowance of Rs.1000/-awarded in favour of the revisionist no.1 has been canceled or set aside and maintenance allowance in favour of revisionist nos. 2 and 3 has been reduced to Rs.250/- per month from Rs.500/- per month each.”
Simply put, the Bench then hastens to add in para 4 that, “Learned counsel for the revisionist submits that learned trial Court vide judgement and order dated 23.1.2007 has allowed the application under Section 125 Cr.P.C. filed by the revisionist after adjudicating five issues. All those issues have been decided in favour of the revisionist. Aggrieved by the order passed by the trial Court, respondent no.2 filed the revision before the revisional court, wherein the impugned order dated 11.4.2008 has been passed.”
Adding more to it, the Bench then enunciates in para 5 that, “Submission of learned counsel for the revisionist is that the revisional Court has wrongly relied and misinterpreted the judgment of Danial Latifi and another vs. Union of India reported in AIR 2001 SC 3958 by allowing the revision. He submits that revision has been allowed only on the ground that since the revisionist no.1 has been divorced by respondent no.2 both are governed by The Muslim Women (Protection of Rights on Divorce) Act 1986 and therefore in view of judgment of Hon’ble Supreme Court in the case of Danial Latifi (supra), after enforcement of this Act, the divorced Muslim women is entitled to get maintenance under Section 3 and Section 4 of the aforesaid Act even after the stage of iddat and therefore she is not entitled to receive maintenance under Section 125 Cr.P.C. In support of his arguments, he has relied on the judgment of Hon’ble Supreme Court in the case of Shabana Bano vs. Imran Khan passed in Criminal Appeal No.2309 of 2009.”
To be sure, the Bench then aptly states in para 6 that, “Learned counsel for the revisionist submits that till date not a single penny has been given by respondent no.2 to the revisionist.”
Be it noted, the Bench then duly observes in para 7 that, “On due consideration and perusal of the record as well as the impugned judgment passed by the trial court, it is not in dispute that respondent no.2 is a person of having sufficient means to maintain his divorced wife and minor children. Issue no.1 has been decided by learned trial Court in favour of the revisionist. Likewise he has neglected to maintain his wife and minor children. The revisionist is destitute and have no source of income and revisionist is entitled to get the maintenance allowance from respondent no.2 and consequently issue nos. 2 to 5 have been decided in favour of the claimant revisionist.”
It is worth noting that the Bench then mentions in para 8 that, “It appears that revisional court has modified the order passed by the learned trial court and maintenance allowance granted under Section 125 Cr.P.C. in favour of respondent no.1 has been set aside and the allowance granted in favour of respondent nos.2 and 3 have been reduced to Rs. 250/- from Rs. 500/- per month.”
Furthermore, the Bench then also goes on to very rightly observes in para 9 that, “From perusal of the impugned order, it appears that the finding of fact regarding the monthly income of the respondent no.2 given by the learned trial Court has been substituted by the revisional Court by its own finding and a different finding, which, in my opinion, is not permissible, while exercising jurisdiction in the criminal revision. On this ground, the maintenance allowance awarded to the revisionists no.2 and 3 has been reduced to half, which is also not proper.”
As we see, the Bench then mentions in para 10 that, “Learned revisional Court, while setting aside the maintenance allowance granted in favour of the revisionist no.1 by the trial court, has relied on the judgment of Hon’ble Supreme Court in the case of Danial Latifi (Supra).”
Most significantly, what forms the cornerstone of this brief judgment is then succinctly stated in para 11 wherein it is held that, “Hon’ble Supreme Court in the case of Sabana Bano (Supra) has held that a divorced Muslim women can be entitled for divorce as long as she does not re-marry. Further, it has been held that provision under Section 125 Cr.P.C. are beneficial piece of legislation and the benefit thereof must accrue to the divorced Muslim women. It has also been held that the divorced Muslim women shall be entitled to claim maintenance from her husband under Section 125 Cr.P.C. even after expiry of period of iddat as long as she does not remarry. Relevant paragraphs 29 and 30 of the judgment are extracted below:-
“29. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women.
30. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry.””
As a corollary, the Bench then hastens to add in para 12 that, “In view of the aforesaid judgement of Sabana Bano (Supra), I have no hesitation in holding that the view taken by the revisional Court is contrary to the law laid down by Hon’ble Supreme Court. The revisionist no.1 being a divorced Muslim women was entitled to claim maintenance under Section 125 Cr.P.C. There is no illegality in the order passed by the trial Court.”
As an inevitable fallout, the Bench then holds in para 13 that, “Accordingly, the impugned order passed by the learned revisional Court is set-aside in view of law laid down by Hon’ble Supreme Court in the case Sabana Bano (supra).”
It is worth paying attention that the Bench then stipulates in para 14 that, “While passing the judgment, this Court has noticed that the maintenance has been awarded to the revisionist under Section 125 Cr.P.C. from the date of the order, which according to recent judgment of Hon’ble Supreme Court in Rajnesh vs. Neha and another reported in (2021) 2 SCC 324, should be paid from the date of application filed under Section 125 Cr.P.C. and therefore, judgment being retrospective in nature is applicable in present case.”
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Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren
On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.
The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.
In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.
While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.
The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.
Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.
The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.
Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.
In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.
It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.
Accordingly, the court will now hear the matter on 14 December.
DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT
The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.
The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.
On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.
In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.
In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.
The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.
Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.
The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.
SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT
The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.
The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.
It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”
The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.
In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.
However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.
Mr. Arvind Gupta, Advocate on Record has filled the present petition.
Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court
The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.
The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.
Also, the court imposed a cost of Rupees one lakh on Singh.
In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.
While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.
The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.
However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.
It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.
Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.
The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.
Post-conviction compounding of offences is permissible: Himachal Pradesh High Court
The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.
The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.
Thus, the petitioner had sought compounding of offences.
In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.
However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.
The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.
‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’
The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.
The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.
In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.
However, the court disallowed the claims on two grounds:
Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.
In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.
Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.
The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.
The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.
Accordingly, the court dismissed the petition.
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