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--------------- Print Magazine --------------
  May 2016
  April 2016

JUVENILES: Rape of Minor Girl

When an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted. While the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstances, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are alleged to have been withheld deliberately with ulterior motives and authenticity of the medical evidence is under challenge by the prosecution.

Om Prakash v. State of Rajasthan , Crl. A. No. 651 of 2002; Decided on 13-4-2012 (SC) [G.S. Singhvi and Gyan Sudha Misra, JJ.]

EDUCATION: Right of Children

Right to education, so far as children of the age 6 to 14 years are concerned, has been elevated to the status of fundamental right under Article 21A of the Constitution and a corresponding obligation has been cast on the State, but through sections 12(1)(b) and 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009.

Section 12 of the Act, mandates that every recognized school imparting elementary education, even if it is an unaided school, not receiving any kind of aid or grant to meet its expenses from the appropriate Government or the local authority, is obliged to admit in Class I, to the extent of at least 25% of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. It has been held that to put an obligation on the unaided non-minority school to admit 25% children cannot be termed as an unreasonable restriction. The object of the 2009 Act is to remove the barriers faced by a child who seeks admission to class I and not to restrict the freedom under Article 19(1)(g) of the Constitution of India.

Society for Un-aided Pvt. Schools v. Union of India , W.P. No. 95 of 2010; Decided on 12-4-2012 (SC) [S.H. Kapadia, CJI, Swatanter Kumar and K.S. Radhakrishnan, JJ.] 2012 (4) SCALE 272.

OFFENCE BY COMPANY: Non-Impleadment of Company

For maintaining the prosecution of a director of a company, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the commission of offence by the company is an express condition precedent to attract the vicarious liability of others. The words 'as well as the company' appearing in section 141 of the Negotiable Instruments Act, make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectabilty.

In the instant case, an authorized signatory of a company issued a cheque for a sum of ` 5,10,000 in favour of respondent company, which was dishonoured as a consequence of which the said respondent initiated criminal action by filing a complaint under section 138 of the Negotiable Instruments Act. In the complaint petition, the company was not arrayed as an accused. However, the Magistrate took cognizance of the offence against the authorized signatory of the company. On challenge, the Supreme Court has held that for maintaining the prosecution under section 141 of the Act, arraigning of a company as an accused is imperative.

Applying the same analysis, it has been held that the director could not be held liable for the offence under section 85 of the Information Technology Act, 2000.

Aneeta Hada v. M/s. Godfather Travels & Tours, Crl. A. No. 838 of 2008; Decided on 27-4-2012 (SC) [Dalveer Bhandari, Sudhansu Jyoti Mukhopadhaya and Dipak Misra, JJ.] 2012 (4) SCALE 644 (SC)

MOTOR VEHICLES: Use of Black Films on Windows/Windshields

Use of black films or any other material upon safety glass, windscreen and side windows is impermissible in law. Considering alarming rise in heinous crimes like kidnapping, sexual assault on women and dacoity have impinged upon the right to life and the right to live in a safe environment. As held, one of the contributory factors to such increase is use of black films on windows/windshields of four wheeled vehicles. The court can take a judicial notice of the fact that even as per the reports, maximum crimes are committed in such vehicles and there has been a definite rise in the commission of heinous crimes, posing a threat to security of individuals and the State, both.

The Supreme Court has directed that the competent officer of the traffic police or any other authorized person shall challan such vehicles for violating rules 92 and 100 of the Motor Vehicles Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles.

Certain VIPs/VVIPs are using black films on their vehicles for security reasons. Even this practice is not supported by law.

Avishek Goenka v. Union of India, WP (C) No. 265 of 2011; Decided on 27-4-2012 (SC) [S.H. Kapadia, CJI, A.K. Patnaik and Swatanter Kumar, JJ.]

TELECOMMUNICATION: Verification of Mobile Subscribers

In this Public Interest Litigation, the petitioner has attempted to highlight the grave issue of non-observance of norms/regulations/guidelines relating to proper and effective subscriber verification by various service providers, prior to selling of the pre-paid mobile connections.

Different random studies in relation to pre-paid Subscriber Identity Module (SIM) cards show widespread violation of guidelines for 'know your customer'. The Supreme Court has held that it is not for this court to examine the merit or otherwise of such policy and regulatory matters. However, the court would step in and direct the technical bodies to consider the matter in accordance with law, while ensuring that public interest is safeguarded and arbitrary decisions do not prevail. The court has directed the constitution of a Joint Expert Committee to discuss and resolve the issues.

Avishek Goenka v. Union of India , 2012 (4) SCALE 611 (SC); Decided on 27-4-2012

ARMY: Disability Pension

It is not in dispute that in case the injury suffered by military personnel is attributable to or aggravated by military service after discharge, he becomes entitled for disability pension. However, a person claiming disability pension must be able to show a reasonable nexus between the act, omission or commission resulting in an injury to the person and the normal expected standard of duties and way of life expected from such person. When the military personnel sustained disability when he was on an annual leave that too at his home town in a road accident, it could not be held that the injuries could be attributable to or aggravated by military service. Such a person would not be entitled to disability pension.

Union of India v. Talwinder Singh , 2012 (5) SCALE 1 (SC); Decided on 20-4-2012

SERVICE LAW: Selections

When the record of selection has been destroyed, it is not possible to consider and decide the plea that the assessment of performance in the written examination was vitiated due to arbitrariness and lack of objectivity.

In the instant case, the answer sheets could be destroyed after three months from the date of declaration of the result of the selection. However, the affidavit filed by the Secretary of the Service Commission clearly showed that within few days of declaration of the result of the selection, the officers of the Commission destroyed the answer sheets of the written examination. This was done in blatant violation of the Resolution. The explanation given by the Secretary for not preserving the answer sheets for three months was frivolous and wholly unacceptable.

Poonam Rani v. State of Haryana , 2012 (5) SCALE 39 (SC); Decided on 1-5-2012 (SC).

LL.M. (Medalist)

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