Lexis®India Newsletter February 2016

Landmark Judgements3

1. The Supreme Court has held that an order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. There has to be a real apprehension that there would be miscarriage of justice. Usmangani Adambhai Vahora Vs. State of Gujarat & Anr [LNIND 2016 SC 12]
2. The Supreme Court has held that Article 47 of Constitution 1950 places responsibility on every State Government to at least contain if not curtail consumption of alcohol. State Government’s Policy is to be encouraged and certainly not to be struck down or discouraged by Courts. Implementation, adaptation, modification or restructuring of the policy vests with State Government and not Judiciary. Placing moratorium on all hotels other than Five Star hotels is not violation of Article 14 of Constitution 1950. Least amount of sale of alcohol occurs in Five Star hotels, which sale indubitably includes guest orders in room-service. Court cannot therefore detect any arbitrariness or capriciousness either in classification, nay unique treatment given by State to hotels possessing Five Star rating. Judicial review is justified only if policy is arbitrary, unfair or violative of fundamental rights. Court can only interfere if policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending basic requirement of Article 14 of Constitution 1950. State Government’s policy does not suffer from vice of arbitrariness. Kerala Bar Hotels Association and Another Vs. State of Kerala & Ors [LNIND 2015 SC 718]
 
3. The Madras High Court has held that inquiry by Sessions Judge is purely summary in nature. It shall not be prolonged one, as loss of time on such count may result in disappearance or obliteration of evidence. Sessions Judge shall take decision at quickest time. Nature of summary inquiry held by Sessions Judge would indicate that there is element of formulation of decision on merits of complaint to address grievance by issuing appropriate direction. Such power cannot be administrative power and Sessions Judge has no administrative control over Police. Under Section 156(3), Magistrate looks into complaint and if he finds that complaint makes out cognizable offence warranting investigation, he makes order for investigation. When Sessions Judge receives complaint as per PUCL’s case, he looks into merits of complaint and addresses same by issuing directions. Like power under Section 156(3) which is judicial power, power of Sessions Judge declared by Supreme Court in PUCL’s case is also judicial power. Esakkiammal Vs. State by Inspector of Police, CB CID, Tirunelveli [[2016] 1 MLJ (CRL) 168]
4. The Madras High Court has issued guidelines to prevent intrusion of criminals in legal profession. Union of India directed to consider revisiting of Act 1961 prohibiting persons with pending cases or criminals entering into legal profession. Bar Council of India shall direct State Bar Councils to get antecedents verification of law graduates. Bar Council of India shall direct State Councils not to enroll graduates with pending criminal cases except bailable cases attracting punishment up to three years and compoundable offences till changes brought in Act 1961 and Rules. Bar Council of India shall not conduct next Bar Council election without prescribing minimum qualification in Bar or senior counsel, who does not have criminal background for candidates to contest elections. Bar Council of India shall reduce number of seats in law colleges. Bar Council of India is to abolish three year law degree course and retain only five year Course. Bar Council of India shall direct State Councils to withdraw recognition/approval given to various Bar/Advocates Associations for past 20 years except older Associations. S.M. Anantha Murugan Vs. Chairman, Bar Council of India, New Delhi & Ors [[2016] 1 MLJ (CRL) 53]
Legal News3
(a) The High Court of Kerala stayed an order passed by the Vigilance court which had directed investigation to be carried out in the allegations of bribery against the Chief Minister and State Power Minister. The High Court forwarded the complaint to Director VACB, Thiruvananthapuram for investigation under Section 156(3) Cr.PC.
(b) A five-judge Constitution Bench of Supreme Court has issued notice to the Union and the Governor of Arunachal Pradesh over the Congress party’s petition challenging the Central Government’s decision to impose President’s rule in the state of Arunachal Pradesh.
(c)The Supreme Court appoints new Lok Ayukta for Uttar Pradesh as the Court was disappointed over differences between constitutional functionaries.
(d) The Delhi High Court seeks copies of documents seized by CBI during the raid on Principal Secretary Rajendra Kumar’s office on December 15.
Legislation Updates3
Central Notifications/Rules/Regulations:
 
Latest Notifications on Foreign Exchange Management, Right to fair compensation and transparency in land acquisition and Reserve Bank of India are now available online. Besides other notifications, few important ones which are now online are as follows:
  1. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.
  2. The Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015.
  3. The Telecommunication (Broadcasting and Cable Services) Interconnection (Digital Addressable Cable Television Systems) (Sixth Amendment) Regulations, 2016.
  4. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Compensation, Rehabilitation and Resettlement and Development Plan) Rules, 2015.
  5. The Nuclear Liability Fund Rules, 2015.
Central Acts:
  • The Juvenile Justice (Care and Protection of Children) Act, 2015.
  • The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.
State Acts:
  • Madhya Pradesh Niji Vishwavidyalaya (Sthapana Avam Sanchalan) Dwitiya Sanshodhan Adhiniyam 2015.
  • Madhya Pradesh Land Revenue Code (Amendment) Act, 2015.

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