Whether decision taken by State Government for withdrawal of cases is open to judicial review or not ?

Allahabad High Court: There was a petition made to the High Court of Allahabad under section 226 in which following questions were sought to be cleared:

"1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable? 
2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India? 
3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr.P.C. irrespective of fact that accused or anyone else has approached the government for this purpose or not? "

The writ petition was filed by an under trial person who had pleaded to the Chief Minister to withdraw the case against him. The application was then forwarded to the District Magistrate for his view on the matter to which the magistrate opined not to withdraw the case and to let the trial continue. The view was sought from Assistant Public Prosecutor, Senior Public Prosecutor and Superintendent of Police who all gave the same view not to withdraw the case. The matter was finally referred to a committee of 2 member, Shri R.M.Srivastava, the then Principal Secretary (Home) and Shri S.K. Pandey, the then Principal Secretary Law and Legal Remembrancer who then gave their opinion that the case is doubtful and it should be withdrawn.

In the meantime, the accused who was facing trial filed the writ petition in the Court and sought the direction of the court in the matter. The Court took serious note of the manner in which power under Section 321 Cr.P.C. was sought to be exercised. The court answered the issues as below:

"Issue No. I: State Government is not at all free to exercise its authority under Section 321 Cr.P.C. in whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons. 
Issue No. II: The decision taken by the State Government for withdrawal of the case communicated to the Public Prosecutor, is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review. 
Issue No. III: The State Government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether they deserve withdrawal under Section 321 Cr.P.C. or not as it is in the realm of the policy decision, and call on the said score has to be taken by the State Government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr.P.C. "

Read the full judgement here.

Whether a complaint can be filed by a Trust under the provisions of the Consumer Protection Act, 1986 ?

In an appeal before the Supreme Court today, a question was raised whether a Trust can file a complaint under the provisions of Consumer Protection Act, 1986. Earlier on this question The National Consumer Disputes Redressal Commission constituted under the same act denied accepting the fact that a Trust can file a complaint being a consumer. Later it came before the Apex Court and the Supreme Court too answered it negatively confirming that a Trust has no title to file a complaint under the said provisions.

The act empowers a complainant to complain for an unfair trade practice or a restrictive trade practice adopted by any trader or service provider; a complaint in respect of goods (bought by a complainant) suffering from one or more defects; a complaint of deficiency in services hired or availed of by a complainant and so on. The court also defined a complainant referring to the section of the act which defines the complainant as "complainant" means − (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act,1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government; or (iv) one or more consumers, where there are numerous consumers having the same interest; (v) in case of death of a consumer, his legal heir or representative ; who or which makes a complaint.

The court confirmed that according the above mentioned definition of a complainant a Trust is not included and hence cannot be a complainant.  The court further explained and answered to the question whether a Trust can be a 'Consumer". To which the court referred to the provisions of the act which defines a consumer as "consumer" means any person who, − (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; but does not include a person who avails of such services of any commercial purpose.

The Supreme Court said "A reading of the definition of the words ‘complaint’, ‘complainant’ and ‘consumer’ makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made.

It further said that a Trust is also not a person as per the definition of a person defined in the act and hence it is clear that "a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act".

Read the judgement here.

One cannot be a beneficiary of his own wrongs: Supreme Court

Supreme Court decided on a crucial case of custody of a child between the divorced couple and pronounced the judgement in the favor of the Father. While deciding the matter the court observed various factors and circumstances of the case. The Court stated that "it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. No doubt, paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts".

The couple married sometime in the year 1999. They lived in Faridabad for a short while and thereafter the couple shifted to U.K. soon. A girl child was born to them in the U.K. Soon after when their relationship did not go well, they filed divorce petition in the court of U.K and around the same time the man who had shifted to India also obtained the decree of divorce in Indian court. The girl remained with the father since the legal battle started and the court also decided the matter in his favor.

The case came up before the Supreme Court when the couple's daughter, Vaishali, was 11 years of age, the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. After meeting her the bench passed the order which stated “In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court. In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order. Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1. We are informed that Vaishali's school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The child's stay with her mother will, in no way, affect her attendance at the school or her studies.

During her stay with the mother, the child will be free to speak to her father on telephone. On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father. During the child's stay with her mother, we would like some responsible and competent person to monitor the arrangement. We, accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi High Court Mediation and Conciliation Centre, to monitor the arrangement on behalf of this Court. Mrs. Ramachandran shall visit the mother and the child at the address noted above on a date and time of her convenience. She would inform respondent No.1 on her mobile phone about the proposed date and time of her visit to the respondent's place. She would see how the relationship between the child and the mother is developing and if need be, she would counsel both the child and the mother. If the father wants to visit the child while she is staying with her mother, he may do so at a time when Mrs. Sadhana Ramachandran is also present there. For the purpose of the visit he will have to take the necessary permission from Mrs. Ramachandran. It is submitted on behalf of Respondent No.1 that she would like to take the child to some resort or some hill station for a brief holiday. We would like the mother and the child to stay in Delhi itself but, in case, both the child and the mother together wish to go outside, they may do so subject to the permission in writing taken from Mrs. Ramachandran. Mrs. Ramachandran would submit a report to this Court within ten days from today. Let this matter be listed for further direction along with the report from Mrs. Ramachandran on April 12, 2013.”

The Hindu Minority and Guardianship Act, 1956 lays down the principles on which custody disputes are to be decided. Section 7 of this Act empowers the Court to make order as to guardianship. Section 17 enumerates the matters which need to be considered by the Court in appointing guardian and among others, enshrines the principle of welfare of the minor child. This is also stated very eloquently in Section 13.

The appellant argued that the child is living since long with the father. The court in response to the argument stated that "The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.”

Read the full judgement here.

The word ‘Free’ used in Article 301 of The Constitution of India does not mean “free from taxation”: Constitution Bench of Supreme Court

In the case of JINDAL STAINLESS LTD.& ANR. V/S STATE OF HARYANA & ORS. the Constitution Bench of Supreme Court including the former CJI T. S. Thakur has answered the reference in the following terms:

1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word ‘Free’ used in Article 301 does not mean “free from taxation”.

2. Only such taxes as are discriminatory in nature are prohibited by Article 304(a). It follows that levy of a non-discriminatory tax would not constitute an infraction of Article 301.

3. Clauses (a) and (b) of Article 304 have to be read disjunctively.

4. A levy that violates 304(a) cannot be saved even if the procedure under Article 304(b) or the proviso there under is satisfied.

5. The compensatory tax theory evolved in Automobile Transport case and subsequently modified in Jindal’s case has no juristic basis and is therefore rejected.

6. Decisions of this Court in Atiabari, Automobile Transport and Jindal cases (supra) and all other judgments that follow these pronouncements are to the extent of such reliance over ruled.

7. A tax on entry of goods into a local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing state.

8. Article 304 (a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation. Therefore, incentives, set-offs etc. granted to a specified class of dealers for a limited period of time in a non-hostile fashion with a view to developing economically backward areas would not violate Article 304(a). The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

9. States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

10. The questions whether the entire State can be notified as a local area and whether entry tax can be levied on goods entering the landmass of India from another country are left open to be determined in appropriate proceedings.

Read the full judgement here.

FLAG CODE OF INDIA, 2002 - The Law related to the Display of The Indian National Flag

Source MHA GOI: There is a universal affection and respect for, and loyalty to, the National Flag. Yet we often notice lack of awareness among people and also government organisations and agencies relating to the laws that regulate the practice and conventions that apply to the display of the National Flag.
The display of the National Flag is governed by the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and The Prevention of Insults to National Honour Act, 1971.
Flag Code of India, 2002 is an attempt to bring together all such laws, conventions, practices and instructions for the guidance of display of the National Flag of India.

The Indian National flag represents the hopes and aspirations of the people ofIndia. It is the symbol ofour national pride. Over the last five decades, several people including members of armed forces have ungrudgingly laid down their lives to keep the tricolour flying in its full glory.

Dr. S. Radhakrishnan in the constituent assembly explained-"Bhagwa or the saffron colour denotes renunciation of disinterestedness. Our leaders must be indifferent to material gains and dedicate themselves to their work. The white in the centre is light, the path oftruth to guide our conduct. The green shows our relation to soil" our relation to the plant life here on which all other life depends. The Ashoka Wheel in the center ofthe white is the wheel of the law of dharma. Truth or satya, dharma or virtue ought to be the contralling principles ofthose who work under this flag. Again, the wheel.denotes motion. There is death in stagnation. There is life in movement. India should no more resist change, it must move and go forward. The wheel represents the dynamism ofa peaceful change."

The law does not put any restrictions on the general public or any private organisations or an educational institutions to display the National Flag except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950· and The Emblems and Names (Prevention of Improper Use) Act, 1950. The rules provide instructions on how to properly and respectfully hoist and display the National Flag

The second section of the code further explains how the national flag must be hoisted in any educational institutions. It states:

The National Flag may be hoisted in educational institutions (schools, colleges;sports camps, scout camps, etc.) to inspire respect for the Flag. A model set ofinstructions for guidancee is given below-

(i) The School will assemble in open square formation with pupils forming the three sides and the Flag-staff at the centre ofthe fourth side. The Headmaster, the pupil·leader and the person unfurling the Flag (if other than the Headmaster) will stand three paces behind the Flag-staff.

(ii) The pupils will fall according to classes and in squads of ten (or other number according to strength). These squads will be arranged one behind the other. The pupil leader ofthe class will stand to the right ofthe first row of his class and the form master will stand three paces behind the last row ofhis class, towards the middle. The classes will be arranged along the square in the order ofseniority with the seniormost class at the right end.

(iii) The distance between each row should be at least one pace (30 inches); and the space between Form and Form should be the same.

(iv) When each Form or Class is ready, the Class leader will step forward and salute the selected school pupil leader. As soon as all the Forms are ready, the school pupil leader will step up to the Headmaster and salute him. The Headmaster will return the salute. Then, the Flag will be unfurled. The School pupil leader may assist.

(v) The School pupil leader iri charge of the parade (or assembly) will call the parade to attention, just before the unfurling, and he will call them to the salute when the Flag flies out. The parade will keep at the salute for a brief interval, and then on the command "order", the parade will come to the attention position.

(vi) The Flag Salutation will be followed by the National Anthem. The parade will be kept at the attention during this part ofthe function

(vii) On all occasions when the pledge is taken, the pledge will follow the National Anthem. When taking the pledge the Assembly will stand to attention and the Headmaster will administer the pledge ceremoniously and the Assembly will repeat it after him.

(viii) In pledging allegiance to the National Flag, the practice to be adopted in Schools is as follows:- Standing with folded hands, all repeat together the following pledge: "I pledge allegiance to the National Flag and to the Sovereign Socialist Secular Democratic Republic for which it stands.

It further mentions the rules to be followed in general.

Wherever the Flag is flown, it should occupy the position of honour and be distinctly placed. Where the practice is to fly the Flag on any public building, it shall be flown on that building on all days including . Sundays and holidays and, except as provided in this Code, it shall be flown from sun-rise to sun-set irrespective ofweather conditions. The Flag may be flown on such a building at night also but this should be only on very special occasions. The Flag shall always be hoisted briskly and lowered slow·ly and ceremoniously. When the hoisting and the lowering of the Flag is accompanied by appropriate bugle calls, the hoisting and lowering should be simultaneous with the bugle calls. When the Flag is displayed from a staff projecting horizontally or at an angle from a windowsill, balcony, or front of a building, the saffron band shall be at the farther end ofthe s aff. When the Flag is displayed flat and horizontal on a wall, the saffron band shall be upper most and when displayed vertically, the saffron band shall be to the right with reference to the Flag, i.e., it may be to the left of a person facing it. When the Flag is displayed' on a speaker's platform, it shall be flown on a staff'on the speaker's right as he faces the audience or flat against the wall above and behind the speaker. When used on occasions like the unveiling of a statue, the Flag shall be displayed distinctly and separately. When the Flag is displayed alone on a motor car, it shall be flown from a staff, which should be affixed firmly either on the middle front ofthe bonnet or to the front right side ofthe car.read more