SUPREME COURT OF INDIA HAS HELD THAT APPEAL CANNOT BE DISPOSED OFF WITHOUT RECORD OF TRIAL COURT

The Supreme Court of India in Savita vs. State of Delhi, 2019, while setting aside a judgement of the Delhi High Court, has passed an Order dated 14-10-201,9 whereby, the Apex Court has held that “we are of the view that disposing of the appeal filed by the Appellant- Accused without the record of the Trial Court is not suitable

The Bench comprising Justice NV Ramana, Justice Sanjiv Khanna and Justice Krishna Murari was considering an appeal against a Delhi High Court order which upheld the conviction and sentence imposed on a man under Section 498 A and 304 IPC by the Trial Court without the records of the said Court, which was lost during the pendency of the Appeal before it.

One of the main issues raised in the Appeal was whether the order of the High Court disposing the Criminal Appeal in the absence of the original records can be held sustainable in the eyes of law.

The Bench held that “ its not in dispute that the High Court has disposed of the appeal filed by the appellant herein without the record of the trial court, which was lost during the pendency of the Appeal before it. The chronology of events also indicates that some efforts made by the State to re-construct the record of the trial but the reconstruction of the record could not be completed. However, learned senior counsel for the respondent- State submits that some of the records are available. Having heard the learned senior counsel for the parties and pursuing the material placed before us, we are of the view that disposing of the appeal filed by the appellant-accused without the record of the trial court is not sustainable. “

The matter was remanded back to the High Court for hearing of the Appeals afresh after reconstruction of the record of the Trial Court.

Sourabh Kumar Mishra

Senior Legal Associate

The Indian Lawyer

NATIONAL GREEN TRIBUNAL HAS BANNED THE USE OF DIESEL GENERATORS IN DELHI AND OTHER SURROUNDING PLACES

The Dakshin Haryana Bijli Vitran Nigam (DHBVN) has recently initiated legal action in the National Green Tribunal (NGT), Delhi, against an order passed by the Environmental Pollution (Prevention and Control) Authority dated 09-10-2019, which has banned the use of diesel generators (DG) in Delhi, Ghaziabad, Noida, Greater Noida, Faridabad, Gurgaon, Sonipath, Panipath and in Bahadurgarh.

The NGT Bench led by Chairperson, Justice Anand Kumar Goel, has passed an Order dated 18-10-2019 and held ‘that the Order passed by the Environmental Pollution (Prevention and Control) Authority is an undoubted need for protection of environment and public health.’ The Court further held that if the Appellant is unable to provide electricity, it is for the Appellant to find other ways and means to generate and provide electricity within the purview of law. This could not be a ground to use DG for generation of electricity as it violates the air protection laws.

Further, upon advice of the Central Pollution Control Board (CPCB), the NGT also banned the use of DG for generation of electricity, as the air quality in the cities has been ranging between moderate to poor and there is an undoubted need to protect the environment and public health.

Govind Gupta

Associate

The Indian Lawyer

GOVERNMENT OF INDIA HAS PLANNED TO ADDRESS THE ISSUE OF ECONOMIC SLOWDOWN

According to various newspaper reports dated 14th August 2019, recently there has been a sharp depression in the Indian economy owing to reduced investments and, reduced consumer demand in automobile and real estate sectors, etc as given below. As a result, the Gross Domestic Product (GDP) has reduced to 6.8 percent in 2018-19.

1- Automobile sector

The automobile sector in India is said to have been facing the worst crisis in 20 years. In the recent years, approximately 2.30 Lakhs people in India have reportedly lost jobs in this sector, 300 dealerships have shut down, and sales of cars, tractors, and two-wheelers have declined considerably.

2- Real Estate

The declining health of the real estate sector is a massive indicator of the falling Indian economy. According to various experts, the volume of unsold houses over the past one year has increased in the top cities of the countries. As a result, around 250 ancillary industries — bricks, cement, steel, furniture, electrical, paints etc – have been adversely affected.

3- Fast moving consumer goods

The fast-moving consumer goods (FMCG) companies have reported a decline in the April- June quarter 2019 in both rural and urban areas of the country. For instance, Hindustan Unilever has reportedly posted volume growth of 5.5 per cent in April-June quarter compared to 12 per cent last year, and Dabur has reportedly posted a growth of 6 per cent against 21 per cent last year.

Thus, various experts believe that the growth of the economy would rebound only if companies are able to adapt themselves to the current regime and also, if the Government works harder in the coming quarters to boost up the growth of the Indian economy.

Aakritee Gambhir

Associate

The Indian Lawyer

THE FINANCIAL ACTION TASK FORCE ORGANIZATION HAS ISSUED STERN WARNING TO BLACK LIST PAKISTAN FOR NOT ADDRESSING TERROR FINANCING ISSUES

The Financial Action Task Force (FATF), an inter-governmental body established in 1989 for setting global standards on anti-money laundering and combating the financing of terrorism, has recently listed Pakistan under the Grey List at a Meeting dated 18-10-2019 and issued a warning stating that the country would be blacklisted or declared to be a non-cooperative country, if it fails to take complete action against terror funding and money laundering by February 2020.

India, a member country of FATF since 2010, has, reportedly, been working with FATF to collect credible evidence against Pakistan’s inaction to address the issues of terror funding and money laundering in its country since 2018.

In the said Meeting, FATF made the following observations:

  1. That Pakistan failed to establish that it had addressed various issues pertaining to terror-financing and money laundering such as control of funding to terrorist groups such as Lashkar-e-Taiba and Jaish-e-Mohammad, seizure of terrorist properties, etc in its country.
  • That Pakistan, further, alleged that India has been pushing other countries to black list the country for non-compliance of its 27-point action plan against terror funding and money laundering in its country.

Thereafter, upon conducting various discussions at FATF, Pakistan reportedly managed to secure three votes from Malaysia, Turkey and China to stay out of the black list. However, it was mutually decided that a warning should be issued to Pakistan for complete compliance of its 27-point action plan against terror funding and money laundering by February 2020, failing which, FATF would black list the country.

According to various experts, if Pakistan is declared as a non-cooperative or black listed country by FATF, various banks and investors would withdraw their funding and investments from Pakistan. This would have an adverse effect on the economy of Pakistan.

Thus, various diplomatic officials across the world have expressed their gratitude to FATF for the strongly worded statement issued to Pakistan and further, hoped that Pakistan would either comply with all the 27 tasks assigned to it to address terror funding and money laundering issues in its country by February 2020 or would be black listed by FATF.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

ARTICLE 142 CANNOT BE USED TO MOCK THE LAW

In a recent case heard by the Supreme Court of India, namely Raj Kumar v. State of Uttar Pradesh decided on 04.10.2019 the Petitioner invoked the powers of the Supreme Court under Article 142 of the Constitution.

The Petitioner was selling milk which did not meet the standards prescribed by the Authorities. The sample which was collected in 1995 had the following values. Milk Fat in sample collected from Accused’s concern was found to be 4.6% and Milk Solid Non-Fat was was 7.7%, against the prescribed standard of 8.5%. The inspector therefore prosecuted the Accused and the Trial Court found him guilty. The said Judgement was upheld by Sessions and the High Court of Uttar Pradesh as well.

The Accused pleaded that the Court should give him the benefit of doubt regarding the values in the milk. He pleaded that the case was very old and milk samples had not been properly analyzed. To this the Supreme Court held that if he had doubt regarding the analysis he should have gone for another analysis while the matter was in the Trial Court.

In the Special Leave Petition(SLP) filed in the Hon’ble Supreme Court of India (SC) the Accused Appellant prayed that the Supreme Court should exercise the powers under Article 142 of the Constitution of India that allows the Supreme Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Rejecting this prayer, the Bench of Justice Deepak Gupta and Justice Aniruddha Bose held that Article 142 cannot be exercised in a way to “make a mockery of the law”.

The Court held that the power under Article 142, in its considered view, cannot be used in total violation of the law. When a minimum sentence is prescribed by law, the Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law. If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum.


This, in our opinion, is not the purpose of Article 142. We have no doubt in our mind that powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself.”

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER



SUPREME COURT OF INDIA TO SOON HAVE A PERMANENT CONSTITUTIONAL BENCH

As per various newspaper reports, the Supreme Court of India is said to soon have a permanent Constitutional Bench from 01-10-2019, which would comprise of 5 judges who would adjudicate matters involving a substantial question of law relating to the interpretation of the Constitution of India 1950 as amended thereof (the Constitution).

The practice that was prevalent before these amendments was that a divisional bench i.e., a bench comprising two judges, referred a matter involving a substantial question of law to the constitutional bench. The Chief Justice of India then constituted a 5-judge bench after taking into consideration factors such as pendency of cases and engagement of judges in other matters.

But soon the Supreme Court would have a permanent 5 Judge Constitutional Bench, wherein, on a rotation basis, minimum 5 judges would get an opportunity to sit and decide any matter involving a substantial question of law, as per Article 145(3) of the Constitution.

Thus, with the setting up of a permanent 5 judge Constitution Bench and five 3 Judge Benches, a total of 20 out of 34 benches would be adjudicating questions pertaining to the Constitution and other important matters. The remaining 14 judges would continue to work as a 2 Judge benches.

With this permanent Constitutional Bench, one may hope that the system adopted to rotate judges will be fair, so that the opportunity is shared equally by every judge.

Aakritee

Associate

The Indian Lawyer

GOVERNMENT OF INDIA LAUNCHES ‘CONSUMER APP’ FOR SPEEDY REDRESSAL OF GRIEVANCES

The Union Minister of Consumer Affairs, Food and Public Distribution, Shri Ram Vilas Paswan, has recently launched a mobile application, namely, ‘Consumer App’ (App) on 01-10-2019, which would act as a one stop solution for speedy redressal of consumer grievances, in addition to consumer courts and consumer helpline.

Further, the App also enables the consumers to avail information across 42 sectors including consumer durables, electronic products, e-commerce, banking, insurance, etc. Besides a registered consumer may also give suggestions to the Government through the App. The App has been made available on both Android and Apple smartphones in English as well as Hindi languages.

A consumer may, upon registration, file a complaint through the App and track the status of the said complaint. The resolution of complaint is said to be a time bound process, whereby, grievances that are simple in nature would be resolved within 20 days, while those that require a feedback from companies or further enquiries, would be resolved within 2 months/60 days. Upon expiry of the said time period, if such complaint remains unresolved, then the consumer would be directed to approach the consumer forum.

This move is meant to be a step closer to the Government’s Digital India Scheme, whereby information about various sectors, consumer complaints, and grievance redressal would be provided in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer