Friday, 13 April 2018

Delhi High Court issued notices to some houses over Kathua Rape Case

April 13, 2018
Delhi High Court today issued a notice to some media houses on the publication of the identity of 8-year-old minor girl (Kathua Case victim). Court termed it as violation section 228A to E. Court took a suo moto cognizance of the issue

Tuesday, 10 April 2018

Whether vakalatnama filed by a newly appointed advocate can be taken on record without no objection obtained from erstwhile advocate

April 10, 2018

Whether vakalatnama filed by a newly appointed advocate is to be accepted in the absence of 'no objection' of the erstwhile advocate, is a question for consideration in below-mentioned case. The Registry of the court has raised an objection on the vakalatnama of the appellant filed by Sri Ajith Anand Shetty, advocate; the objection was that the vakalatnama does not contain 'no objection' of the erstwhile advocate for the appellant.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Miscellaneous First Appeal No. 6526/2013 (LAC)

Decided On: 02.12.2016

Karnataka Power Transmission Corporation Ltd. Vs.
M. Rajashekar and Ors.

Hon'ble Judges/Coram:
H.G. Ramesh and John Michael Cunha, JJ.

1. Whether vakalatnama filed by a new advocate is to be accepted in the absence of 'no objection' of the advocate already on record, is the short question for consideration in this case.

2. The registry has raised an objection on the vakalatnama of the appellant filed by Sri Ajith Anand Shetty, advocate; the objection is that the vakalatnama does not contain 'no objection' of the advocate already on record for the appellant.

3. We have heard Sri Ajith Anand Shetty, learned counsel, on the objection raised by the Registry. The learned counsel submitted that a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. Hence, a party cannot be compelled to obtain 'no objection' from the advocate already on record. Insisting for 'no objection' from the previous advocate will amount to putting a restriction on the right of a party to appoint an advocate of his choice. He sought for an overruling of the objection raised by the Registry. In support of his submission, he relied on two decisions of the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/ SC/3273/2000: AIR 2000 SC 2912], and in New India Assurance Co. Ltd. v. A.K. Saxena [MANU/SC/0913/2003 : AIR 2004 SC 311], and also a Division Bench decision of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/ KA/0284/2008: ILR 2008 KAR 3983].

4. To examine the question raised, it is relevant to refer to the following observations made by the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/SC/3273/2000 : AIR 2000 SC 2912]:

"15. A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the list, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.

17. If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate, if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case, it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.

18. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realize the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the list has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.

23. We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct.

42. ........It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other amounts payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf. ......."

(Emphasis and underlining supplied)

5. In the context of the question raised, the following observations made by a Division Bench of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/ KA/0284/2008: ILR 2008 KAR 3983] are also apposite:

"7. We are therefore of the considered opinion that the contract of vakalathnama can be withdrawn by the client at any time. There is nothing known as irrevocable vakalathnama. Precisely the same right has been exercised by respondent No. 1 herein (defendant No. 7 in the suit) who had earlier engaged the petitioners on their behalf as Advocates to represent them. ......

8. ......if the Advocate feels that he has any genuine claim or grievance against his client, the appropriate course is to return the brief with an endorsement of no objection and agitate such right in an appropriate forum, in accordance with law and not indulge in arm-twisting methods by holding on to the brief."

(Underlining supplied)

6. As could be seen from the observations made in the two decisions extracted above, a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. A party has the freedom to change his advocate any time and for whatever reason. However, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.

7. There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing a restriction on the said right can't be construed as mandatory. Accordingly, Courts, Tribunals or other authorities shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new advocate.
8. As observed in the decisions referred to above, if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law.

9. As stated above, under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. The right is absolute and not conditional. Hence, the objection raised by the Registry on the vakalatnama is overruled. Hereafter, the Registry shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new Advocate. 

Thursday, 5 April 2018

Vakalatnama Format for Delhi Courts

April 05, 2018

Vakalatnama format for Delhi Courts

VAKALATNAMA


IN THE  

In the matter of


                                                                 PETITIONER

VERSUS
                                                                             RESPONDENT


Know all to whom these presents shall come that I/We ___________________________

______________________________________________________________________

Them above named the _____________________________________do hereby appoint
                                                  
Sudarshan Rajan & Ramesh Rawat
ADVOCATES
Ch. No. 84, Old Lawyers Chambers Supreme Court of India, New Delhi
ENROLLMENT NO. D/968/2000, D/1948/2014
Mobile: 9650075050, 9990865829

Advocate(s),   to be my/ our true and lawful attorney (s), in the matter noted above, to do all the following acts, deeds and things, or any of them, (jointly and severally) and also ratify anything already done on our behalf that is to say: -

1.    To sign, verify and present and send notices, replies rejoinders, pleadings, appeals, cross-objections or petitions for execution, review, revision, other petitions or affidavit or other documents as shall be deemed necessary or advisable for the prosecution of the case or in relation thereto in all its stages.
2.    To appear, act, and plead in the above-mentioned case in any court or tribunal etc, in which the same be heard or tried in the 1st instance or in appeal or review or revision or execution or in any other stage of its progress until its final decision.
3.    To withdraw or compromise the said case or submit to arbitration any differences or disputes that may arise to or in any manner relating to the said case.
4.    To receive documents, papers, records, orders etc. and to do all other acts all things, which may be necessary or proper to be done for the progress and in all course of the prosecution of the said case.
5.    To employ any other legal practitioner, advocate or consultant authorizing him to exercise the power and authority hereby conferred on the Advocate (s) whenever he/they may think fit to do so.
      And I/We hereby agree that whatever the Advocate (s) or his/ there substitute shall do in the premises shall be binding on me in all intents and purposes just as if it would have been done by me.
And I/We hereby agree not to hold the Advocate (s) or his/their substitute responsible for the said case in consequence of his absence from the court when the said case is called up for hearing.
And I/We hereby agree that in the event of the whole or any part of the free agreed by me/ us to be paid to the Advocate (s) remaining unpaid he/they shall be entitled to withdraw from the prosecution of the said case, or not to appear until the same is paid.
In witness whereof I/We hereunto set my/our hand to these presents the contents of which have been explained to and understood by me/us.
Date: ___________


Advocate (s)                                                                                                 Client(s)


Supreme Court of India dismisses all Petitions Regarding the CBSE Examination paper Leak case

April 05, 2018
Supreme Court of India dismisses all Petitions Regarding the CBSE Examination paper Leak case  

The Supreme Court of India bench headed by Justice S. A. Bobde and Justice L. Nageswara Rao on 04.04.2018 dismissed a bunch of writ petitions filed by the CBSE students in the stir of the latest event of the leak of the Economics and Mathematics question papers for class 10 and 12 examinations correspondingly.
It was on the basis of a notification issued by the Controller of Examination, the CBSE made the statement against the re-test of class X mathematics examination

Following petitions were filed in the Supreme Court of India:-

In the case of Rohan Mathew v. CBSE

A student of Class 10 had approached the Hon’ble Supreme Court of India against the resolution of the Central Board of Secondary Education (CBSE in short) to terminate and re-conduct the Math exam held on March 28 on distrust of question paper leakage. According to the petitioner, around 16 lakh students appeared in the exam in 11 regions across the country. The unverified distrust is that the question papers seeped in certain parts of the Delhi Region of the CBSE.  Therefore, the petitioner stated that to punish the whole student community for an incident which supposedly took place in one center is illegal and arbitrary in the non-appearance of any evidence to show that the whole examination process was abased.

Senior Advocate Sajan Poovayya, appearing on behalf of the petitioner, withdrawn the writ petition on the basis of the notification dated 3rd April of the CBSE by which the Board had decided to not re-conduct the Math examination for class 10.

In the case of Reepak Kansal v. UOI

In this petition filed by Counsel Reepak Kansal, it was stated before the Hon’ble bench that on March 28, the CBSE had decided to re-conducting the examinations for the Economics and Mathematics papers for classes XII and X respectively “without considering the impact of the leak”. “The resolution of re-examination controverts the test of proportionality and fairness (as provided under Article 14)”, it was pleaded. Dismissing the petition, the Hon’ble bench stated, “it is not a part of the jurisdiction of this court to see if the paper was leaked...in writ jurisdiction, we cannot examine the impact of the leakage...this falls within the power of the authorities...”

In the case of Mahendra Pratap Singh v. CBSE

Through this petition, the petitioner sought directions to the CBSE to not conduct an Economics paper re-test for class XII students subsequent to the question paper leak issue. It was also stated in the petition that if at all the test will be held, it should be made non-compulsory.

While dismissing the petition, the bench observed, “It is not a moral concept that an examination is made optional”. Alakh Alok Srivastava v. UOI

The petitioner-in-person had prayed that re-examination be conducted of all subjects for Class 12 within four weeks and not only of the Economics paper. Further, he had sought an independent investigation by the CBI into the matter. Also, he requested that the CBSE and the HRD Ministry be directed to pay damages and compensation of Rs. 1 lakh each to the students of Class 12 appearing in the re-examination “towards the mental agony, mental stress and inconvenience caused”.

The Hon’ble bench on 04.04.2018 declined to inherit to any of the above prayers. 


Monday, 2 April 2018

Centre Govt. has filed Review Petition in Supreme Court against Supreme Court judgment diluted SC/ST Act

April 02, 2018

Centre Govt. has filed Review Petition in Supreme Court against Supreme Court judgment diluted SC/ST Act

The Centre govt. today has filed a review petition in the Supreme Court against the March 20 judgment of a two-judge bench which 'diluted" the SC/ST (Prevention of Atrocities) Act by laying down stringent ‘protections’ before registration of a case under it and barred automatic arrests.

Sources said that the petition has been filed by the Ministry of Social Justice and empowerment contends that the March 20 judgment may dilute the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which was meant at protective the socially relegated. It contends that such a dilution could decrease fear and lead to violations, making Dalit’s and tribal more defenseless.

This judgment had elicited disapprovals from Dalit MPs and outfits, with BJP MPs and the party’s associates, who met Social Justice Minister Tawar Chand Gehlot and conveyed their anxiety that the SC order may end up to disagreeing justice to SC/STs.

They had asked Gehlot to take the matter up with the Prime Minister. Main opposition party Congress also had claimed to file a review petition.

A Congress Party delegation had met the President of India on the issue.

It is to be noted that Law Minister Ravi Shankar Prasad had also tweeted yesterday: “Review petition by the Government against the SC judgment on SC/ST Protection Act shall be filed positively tomorrow, Monday, April 2.”

Cracking the thrash on "the rampant misuse of the SC/ST Act", a bench of justices A K Goel and U U Lalit ruled that there shall be no immediate arrest of a public or no-public servant.

They also ruled that the accused can be taken into custody only after an official not below the rank of Deputy Superintendent (in case of public servant) or SSP (non-public servant) makes an inquiry and is satisfied that a prima-facie case existed.

SC also said that the accused is also entitled to grant of anticipatory bail if the complaint would found to be mala fide.


Placing down the protections against “misuse” of the Act, the Hon’ble bench had also observed in the judgment: “It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in panchayat, municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes. It may be noticed that by way of rampant misuse, complaints are largely being filed particularly against public servants/ quasi-judicial/judicial officers with an oblique motive for the satisfaction of vested interests.”

Saturday, 31 March 2018

Bailable Offences under the Indian Penal Code, 1860

March 31, 2018

Bailable Offences under the Indian Penal Code, 1860

Section
          Offence
140
Wearing soldier’s garb, sailor, airman

144
Punishment for unlawful assembly
154
Owner or occupier of land on which unlawful assembly is held
158
Being hired to be part of unlawful assembly or riot
166A
Public servant disobeying direction under law
167
Public servant framing incorrect document
177
Furnishing false information
181
False statement on oath to public servants
186
Disobedience to order duly promulgated by public servant
189
Threat of injury to public servant
191
Giving false evidence
195A
Threatening any person to give false evidence
203
Giving false information respecting an offence
210
Fraudulently making false claim in court    
213
Taking gift, to screen an offender from punishment
223
Escape from confinement or custody negligently suffered by public servant
228
Intentionally insult or interruption to public servant sitting in judicial proceeding
264
Fraudulent use or false instrument for weighing
269
Negligent act likely to spread infectious disease dangerous to life
272
Adulteration for food or drink intended for sale
274
Adulteration of drug
275
Sale of adulterated drug    
279
Rash driving or riding on a public way    
283
Danger or obstruction in public way or line of navigation
292
Sale of obscene book
297
Trespassing on burial places
304A
Punishment for  causing death by negligence
309
Attempt to commit suicide    
318
Concealment of birth by secret disposal of body    
323
Causing hurt    
349
Using force    
354D
Stalking Bailable  
363
Punishment for Kidnapping
417
Punishment for Cheating
426
Punishment for  Mischief    
447
Punishment for Criminal trespass    
465
Forgery 
477A
Falsification of accounts    
489C
Possession of forged currency notes or banknotes    
494
Marrying again during lifetime of husband or wife    
496
Marriage ceremony fraudulently gone through without lawful marriage    
498
Enticing or taking away or detaining with criminal intent    
500
Punishment for Defamation    
506
Criminal intimidation    
509
Word, gesture or act intended to insult the modesty of a woman    
510
Misconduct in public by drunken person