INTRODUCTION: - Under the purview of criminal law personal bonds and surety bonds are very essential which works as a safeguard, providing a relief in respect of an accused person, through which he can be released from custody whilethe trial is in waiting. These bonds conduct as guarantees, ensuring the accused will comply with the mentioned conditions finalized by the court. While both personal and surety bonds act as security but they have significant amount of distinction. Through this blog will be exploring these two element, probing into its explanation.

BACKGROUND: - The origins of bail and bond systems can be traced back to ancient civilizations. During medieval England, the essence and the growth of the bail was ensured that accused persons could be released from custody while the trial is in wait. Over time, these system got evolved, including the various forms of bonds, such as personal and surety bonds, securing the release of accused persons.

In India, the bail system was introduced by the British authority, through which it got emergedinto the Indian legal framework, for instance the Code of Criminal Procedure, 1973, granting the bail in criminal cases.

KEY DIFFERENCE: - The existing difference are the following below-

·         A personal bond, is a written promise signed by the accused, agreeing to comply with the conditions set by the court and to appear for trial, while a surety bond involves a third party, known as a surety, who guarantees the accused's compliance with the court's conditions and appearance at trial.

·        There is no financial cost or collateral involved for the accused when signing a personal bond, in the case of surety bond, it requires the surety to pledge a certain amount of money or property as collateral.

·        There is no need for a surety in a personal bond, only the accused is solely responsible for compliance under conditions mentioned by the court, while in the surety bond the role of surety is very crucial role, as they pledge collateral and ensure the accused's compliance. The surety assumes the risk of forfeiture if the accused fails to comply.

·        The opportunity of release are solely based on the accused's promise of compliance. These conditions may include appearing at trial, not leaving the jurisdiction, and not engaging in criminal activity, while the release conditions are enforced by the surety, who is responsible for ensuring the accused's compliance, which also includes additional conditions given by the surety himself to avoid the risk.

STATUTORY PROVISIONS: - The existing certain law which contains this two type of bond particularly comes under the criminal law which already also mentioned above, But we be delving in the precis manner, which are-

1. Code of Criminal Procedure (CrPC), 1973

Section 436: Deals with bail in bailable offences and allows the accused to be released on personal bond without sureties.

Section 441: Allows the release of an accused on their own bond or on bail, requiring the accused to attend at the time and place specified in the bond.

Section 446: It less down the procedure when a bond has been forfeited. The surety may be liable to imprisonment if the penalty cannot be recovered.

2. The court may also accept affidavits to determine the eligibility of the surety etc.

CASE LAW: - Some landmark cases dealt by the Supreme Court itself related to these above bonds include-

·        Ram Lal v. State of U.P (1979): Under this case the surety’s undertaking to secure the accused’s presence is distinct of the accused’s undertaking to appear in court.

·        Moti Ram v. State of Madhya Pradesh (1978): This case established the principle that bail conditions should not be oppressive and should consider the financial capacity of the accused.

·        State of Rajasthan v. Balchand (1977): Court has established the principle that “bail is the rule and jail is the exception,” essentially emphasizes that the courts should be cautious when denying bail of an accused person unless there is a significant amount of risk of them interfering in the legal process.

·        In multiple cases related to bail the courts has mentioned the importance of balancing the accused’s fundamental rights related to right to life and liberty including the necessity of their presence.

CONCLUSION: - In the end of this discussion, the personal bonds and surety bonds serve as essential mechanisms for ensuring the release of accused persons. Personal bonds rely on the accused's own diligence and without involving in any financial or any implications, making them accessible for individuals with certain limitations, while surety bonds, involves a third party who pledges, providing series of assurance in front of the court of , for any relevant inconvenience regarding above mentioned matters you can contact Online Legal Query, who can navigate you towards those senior legal experts who are eligible also qualified to help so far through proper presentation of knowledge.

INTRODUCION: - A special Power of Attorney is a legal document which provides a validity to an agent or any related person or attorney in fact the authority to act on behalf of the principle in respect of any specific matters. The existing difference between General Power of Attorney and Special General Power of Attorney is evident under some limited particular conductivities or transactions. Through this blog will be exploring the validity of SPA, probing into its explanation.

BACKGROUND: - The essence of power of attorney can be found in back in days under Romanian Law, ‘procuratio’.Over the period of time, through various legal systems was adopted and modified and the concept to suit their needs was come into the existence. In India, the power of attorney was introduced around British colonial period.In the 18th and 19th centuries, common law systems, including England, further developed the concept, emphasizing the need for clear documentation and legal recognition.The Indian Contract Act, 1872, and the Powers of Attorney Act, 1882, provide the legal framework for the creation and execution of powers of attorney, including Special POA.

KEY ASPECTS: - Under this some points are-

1.     A Special POA is a specific type of power of attorney that grants the agent authority to conduct on behalf of or represents the principal in certain matters.

2.     To make an Special POA be valid, it must be executed through maintaining the legal requirements, which includes the clear intention to grant authority by the principle and acceptance of the agent's, through documentation, notarization& registration, also stamp duty etc.

3.     The principal has the right to revoke the Special POA at any time, provided they are mentally and physically capable of doing so, in writing and after the communication has been done with the agent and any third parties involved (if any), practically have to maintain a proper execution.

4.     A Special POA limited scope for specific purpose, onlyfor which it is granted mentioned under the specified document related to this.

5.     Both the principal and the agent must have the legal capacity to enter into an agreement to beable to maintain a properexecutionunder power of attorney.

6.     The selection of the agent have to be maintain with clarity, which also includes the termination on completion.

DIFFERENCE: - The distinctions between the General and Special POA are-

1.     For General POA the scope is limited under broad authority for legal and financial matters and for Special POA the specific limited authority has been given for specific task or transactions.

2.     The General POA is more flexible than Special POA.

3.     The General POA has higher chances of risk than Special POA.

4.     General POA IS valid until it is revoked or the principle becomes incapable to be able to maintain the agreement, where for Special POA is valid until the completion of the specific given task or transaction.

5.     GPA can be used when one wants to manage their overall affairs in their absence, but in the situation of SPA can be used when one wants someone to manage single or any specific affair etc.

LEGAL PROVISION: - The legal provisions governing Special POA in India are primarily found those statutes which has highlighted the requirements for the creation, execution, and revocation of powers of attorney, these are-

1. The Indian Contract Act, 1872 provides the general principles of contract law, which is also applicable under the concept of powers of attorney.

2. The specific statute is Powers of Attorney Act, 1882, which has been specifically established for the purpose to deals with the legal framework in respect ofpowers of attorney in India, which has less down or includes the requirements and other necessary points for powers of attorney, including General POA and Special POA.

CASE LAW: -

·        The Supreme Court of India has delivered a judgement on the scope and validity of the power under POA documents. The Court has explained that a POA cannot be used for property transfer without principle’s consent and proper execution.

·        Ghanshyam v. Yogendra Rathi (2023): the Supreme Court has held that a Power of Attorney (POA) document, including an SPA, does not comes under a title document or includes any right over immovable property, which means a separate registered sale deed is required for this even if a SPA is used for sale process.

CONCLUSION: - The validity of a Special Power of Attorney depends on its compliance to the legal requirements and also on the principles specified through relevant statutes. Proper execution, documentation, and registration are essential for the validity of an SPA. It is crucial for individuals and entities to ensure that their SPA complies with the given duty to avoid any potential legal disputes or challenges, such as for any inconvenience above regarding matters you can contact Online Legal Query, who can navigate you towards those senior legal experts who are eligible also qualified to help so far through proper presentation of knowledge. 

INTRODUCTION: -An Agreement of Sale has a significant importance in the legal and real estate areas. The foundation of a contractual relationship between the buyer and the seller, includes the terms and conditions regarding a particular sale. The Agreement of Sale also includes the certain limitation for the purpose to file a suit for specific performance, ensuring the fulfilment ofthe terms. Through this blog will be exploring the validity of the Agreement of Sale and the limitations to file a suit for specific performance, probing into its explanation.

BACKGROUND: - The specific performance is a type of legal remedy. The origin or the traces can be found back in the common law system in England. The growth of the remedy under specific performance has been addressed by the courts, especially for those situations where pecuniary compensation was inadequate as a remedy under the breach of a contract. And over time, a valid structure was introduced through various legal systems worldwide. In India, the Specific Relief Act, 1963, governs the provisions and contractual obligations related to specific performance.

KEY VALIDATION: - The important aspects under this are-

·        An agreement of sale is a legal document that outlines the terms and conditions, sanctioned between buyer and seller.

·        The agreement must contain the free assent of each party involved.

·        Proper validation also depends on the eligible documentation, upon which both party are agreed.

·        Exploring on the nature and value of the property, the agreement may need to be registered with the eligible authorities.

·        The agreement should maintain a proper clarification, which states the possibility of seeking specific performance as a remedy.

·        The limitation period for filing a suit for specific performance most of the time are three years from the date fixed for performance or when the plaintiff has notice of the refusal to perform if there is specific period is mentioned etc.

LEGAL PROVISION: - The mentionable statutory provisions are-

1.     The Specific Relief Act, 1963. This has less down the enforcement of specific performance under the purview of India.

2.     The Indian Contract Act, 1872, which less downs the general principles of contract law, which apply to the creation and execution of an Agreement of Sale.

3.     The Limitation Act, 1963, which less downs or prescribes the limitation period for filing a suit for specific performance.

OVERALL ANALISIS: - The validity of an Agreement of Sale and the limitation to file a suit for specific performance are interconnected with each other. For an Agreement of Sale to be valid, it must comply with the provisions mentioned under the Indian Contract Act, 1872, which includes ensuring the free consent, lawful consideration, and a lawful object, and also the terms and conditions of the agreement must be certain.

On the other hand the specific performance works as a remedy which is particularly relevant transactions related to real estate. Where the property is being sold may have unique characteristics that makes the compensation an unapproachable remedy. The Specific Relief Act, 1963, provides the legal basis for enforcing specific performance, ensuring that the contractual obligations are fulfilled.

The limitation period for filing a suit under specific performance is another aspect which must be sustained for validation. The specific Act which is the Limitation Act, 1963, specifies that the legal actions are taken within a reasonable time frame, preventing any unnecessary delays ensuring certainty. It is an essential eligibility through which the parties to an Agreement of Sale must be aware of and take timely legal action to enforce their rights.

CASE LAW: -

·        Ram Das v. Smt. Lila D. Bhagat (2002): the Supreme Court held that the limitation period for filing a suit for specific performance begins from the date fixed for performance or, if no such date is fixed, when the plaintiff has notice of the refusal to perform. The court emphasized the importance of adhering to the limitation period to ensure timely enforcement of contractual obligations.

·        K.S Vidyanadam v. Vairavan (1997): This case has underscores the importance of timely action in filing a suit for specific performance and the impact of delay on the validity of the sale agreement.

CONCLUSION: - The sale agreement and the ability to file a suit for specific performance are intertwined with each other to comply with legal provisions, including timely action. Under the Limitation Act, for filing such suits also has the great importance. Above mentioned landmark cases also indicates the critical importance of acting within this limitation period to enforce contractual obligations effectively. This ultimately will help to uphold the integrity and enforceability of agreements, for any relevant inconvenience regarding above mentioned matters you can contact Online Legal Query, who can navigate you towards those senior legal experts who are eligible also qualified to help so far through proper presentation of knowledge.

Possibility of Transfer of Criminal Cases Related to Family Matters

Introduction:

In India ‘family matters’ refers to legal issue related to divorce, adoption, marriage, child custody, alimony, domestic violence, and inheritance all of these come under the family matters.

The rules that apply when someone commits a crime, such as assault, robbery, murder, and other kinds of crimes.

Family law cases can sometimes take unexpected turns, which can lead to criminal charges with far-reaching consequences. Therefore, it is important to have a delicate understanding of the legal scenery in order to steer the intersection of family and criminal law.

Cases where a family matter turns into a criminal case:

These are the issues where family matters turn into a criminal case:

Child Abuse:

Cases involving child custody and access can take a criminal turn when allegations of child abuse involve. Child abuse charges may include assault, sexual exploitation, or neglect. If the court thinks that a child’s safety is at risk, it may involve child protection services, and criminal charges against the offending party.

Domestic Violence:

One of the most common situations where a civil family matter may transform into a criminal matter is in instances of domestic violence. Family law cases involving allegations of abuse, whether physical, mental, emotional, or financial, assault, uttering threats, or harassment, come under the involvement of criminal charges.

Fraud:

Matters related to property division and financial support can sometimes reveal instances of fraud. If any of the party intentionally conceals assets, provides false financial information, or engages in other fraudulent activities during a family law case, then can be led to criminal charges of fraud.

False Allegations:

In few cases, individuals may make false allegations during family law proceedings. If it is proven that the charges make by one against the other party are false then these false statements can have severe consequences, including criminal charges for perjury or obstruction of justice.

Violation of Court Orders:

Non-compliance with court orders, such as failing to pay child support or violating restraining orders, can result in criminal charges. Contempt of court charges may be pursued, emphasizing the importance of adhering to the court’s directives.

The Interchange between Family and Criminal Law:

When a family law matter turns into a criminal case, the legal scenario becomes more entangled. The involvement of different legal systems adds more complexity and parties to the case find themselves facing both criminal and civil proceedings side by side.

Evidence and Burden of Proof:

While family law cases often lie on a prevalence of evidence, criminal cases require a higher standard of proof -beyond a reasonable doubt. The burden of proof in criminal cases is on the prosecution, emphasizing the seriousness of the charges and the need for an investigation.

Legal Representation:

Parties facing both family and criminal cases must steer the legal system with adept representation. It is essential to engage a law firm that is well-versed in both family and criminal law, as law firms as ours OLQ Online Legal LLP will be able to provide comprehensive guidance and ensure that the client’s rights are protected in both areas.

Conclusion:

While family matters primarily fall under the jurisdiction of civil law, there are instances where a case can unexpectedly transformed into a criminal matter. In the family matters where actions involved such as physical assault or sexual abuse, the party who is aggrieved can file a separate criminal complaint, leading to the criminal court proceedings along with the family matters.

CONCLUSION:

Cheque bounce is much more serious issue than what it looks like, with legal complications. It affects both the parties, the drawer and the receiver. As mentioned above, there are remedies available to the receiver in case of cheque bounces due to “insufficient funds” including other reasons as well. Approaching a Legal advisor for such matters can help you resolve your legal issue and provide a pathway for compensation and recovery of the said amount. OLQ Online Legal Query LLP is committed to making the legal process for cheque bounce case more accessible and efficient all over India. With a network of skilled legal practitioners based throughout the country we strive to ensure success and deliver justice through expert legal guidance and advise you on optimal course of action.

I.     The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356  of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 2  held :-

                                                  " 2. In last four decades, the menace of illegal and unauthorised constructions of buildings and other structures in different parts of the country has acquired monstrous proportion. This Court has repeatedly emphasized the importance of planned development of the cities and either approved the orders passed by the High Court or itself gave directions for demolition of illegal constructions - (1) K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (1974) 2 SCC 506; (2) Virender Gaur v. State of Haryana (1995) 2 SCC 577; (3) Pleasant Stay Hotel v. Palani Hills Conservation Council (1995) 6 SCC 127; (4) Cantonment Board, Jabalpur v. S.N. Awasthi 1995 Supp.(4) SCC 595; (5) Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (1991) 3 SCC 341; (6) G.N. Khajuria (Dr) v. Delhi Development Authority (1995) 5 SCC 762; (7) Manju Bhatia v. New Delhi Municipal Council (1997) 6 SCC 370; (8) M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464; (9) Friends Colony Development Committee v. State of Orissa (2004) 8 SCC 733; (10) Shanti Sports Club v. Union of India (2009) 15 SCC 705 and (11) Priyanka Estates International Pvt. Ltd. v. State of Assam (2010) 2 SCC 27."

          II.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 3  held :-
                                                  "3. In K. Ramadas Shenoy v. Chief Officers, Town Municipal Council (supra), the resolution passed by the Municipal Committee authorising construction of a cinema theatre was challenged on the ground that the site was earmarked for the construction of Kalyan Mantap-cum-Lecture Hall and the same could not have been used for any other purpose. The High Court held that the cinema theatre could not be constructed at the disputed site but declined to quash the resolution of the Municipal Committee on the ground that the theatre owner had spent huge amount. While setting aside the High Court’s order, this Court observed:

                              “An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction. The Scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the Scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.

                              The Court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The Scheme here is for the benefit of the public. There is special interest in the performance of the duty. All the residents in the area have their personal interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction.”   

         III.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation &Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 4  held :-

                                      "4. In Pratibha Coop. Housing Society Ltd. v. State of Maharashtra (supra), this Court approved the order passed by the Bombay Municipal Corporation for demolition of the illegally constructed floors of the building and observed:

                    “Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorized constructions never pays and is against the interest of the society at large. The rules, regulations and bye- laws are made by the Corporations or development authorities taking in view the larger public interest of the society and it is the bounden duty of the citizens to obey and follow such rules which are made for their own benefits.”         

         IV.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 5  held :-

                                      "5. In Friends Colony Development Committee v. State of Orissa (supra), this Court noted that large number of illegal and unauthorised constructions were being raised in the city of Cuttack and made the following significant observations:

                    “………Builders violate with impunity the sanctioned building plans and indulge in deviations much to the prejudice of the planned development of the city and at the peril of the occupants of the premises constructed or of the inhabitants of the city at large. Serious threat is posed to ecology and environment and, at the same time, the infrastructure consisting of water supply, sewerage and traffic movement facilities suffers unbearable burden and is often thrown out of gear. Unwary purchasers in search of roof over their heads and purchasing flats/apartments from builders, find themselves having fallen prey and become victims to the designs of unscrupulous builders. The builder conveniently walks away having pocketed the money leaving behind the unfortunate occupants to face the music in the event of unauthorized constructions being detected or exposed and threatened with demolition. Though the local authorities have the staff consisting of engineers and inspectors whose duty is to keep a watch on building activities and to promptly stop the illegal constructions or deviations coming up, they often fail in discharging their duty. Either they don't act or do not act promptly or do connive at such activities apparently for illegitimate considerations. If such activities are to stop some stringent actions are required to be taken by ruthlessly demolishing the illegal constructions and non-compoundable deviations. The unwary purchasers who shall be the sufferers must be adequately compensated by the builder. The arms of the law must stretch to catch hold of such unscrupulous builders………….

          In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the State. The exercise of such governmental power is justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.

          The municipal laws regulating the building construction activity may provide for regulations as to floor area, the number of floors, the extent of height rise and the nature of use to which a built-up property may be subjected in any particular area. The individuals as property owners have to pay some price for securing peace, good order, dignity, protection and comfort and safety of the community. Not only filth, stench and unhealthy places have to be eliminated, but the layout helps in achieving family values, youth values, seclusion and clean air to make the locality a better place to live. Building regulations also help in reduction or elimination of fire hazards, the avoidance of traffic dangers and the lessening of prevention of traffic congestion in the streets and roads. Zoning and building regulations are also legitimized from the point of view of the control of community development, the prevention of overcrowding of land, the furnishing of recreational facilities like parks and playgrounds and the availability of adequate water, sewerage and other governmental or utility services.

          Structural and lot area regulations authorize the municipal authorities to regulate and restrict the height, number of storey  and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building.” (emphasis supplied)"          

          V.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 6  held :-
                                   " 6. In Shanti Sports Club v. Union of India (supra), this Court approved the order of the Delhi High Court which had declared the construction of sports complex by the appellant on the land acquired for planned development of Delhi to be illegal and observed:      
“In the last four decades, almost all cities, big or small, have seen unplanned growth. In the 21st century, the menace of illegal and unauthorised constructions and encroachments has acquired monstrous proportions and everyone has been paying heavy price for the same. Economically affluent people and those having support of the political and executive apparatus of the State have constructed buildings, commercial complexes, multiplexes, malls, etc. in blatant violation of the municipal and town planning laws, master plans, zonal development plans and even the sanctioned building plans. In most of the cases of illegal or unauthorised constructions, the officers of the municipal and other regulatory bodies turn blind eye either due to the influence of higher functionaries of the State or other extraneous reasons. Those who construct buildings in violation of the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet such violations are totally unmindful of the grave consequences of their actions and/or omissions on the present as well as future generations of the country which will be forced to live in unplanned cities and urban areas. The people belonging to this class do not realise that the constructions made in violation of the relevant laws, master plan or zonal development plan or sanctioned building plan or the building is used for a purpose other than the one specified in the relevant statute or the master plan, etc., such constructions put unbearable burden on the public facilities/amenities like water, electricity, sewerage, etc. apart from creating chaos on the roads. The pollution caused due to traffic congestion affects the health of the road users. The pedestrians and people belonging to weaker sections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer from skin diseases of different types, asthma, allergies and even more dreaded diseases like cancer. It can only be a matter of imagination how much the Government has to spend on the treatment of such persons and also for controlling pollution and adverse impact on the environment due to traffic congestion on the roads and chaotic conditions created due to illegal and unauthorized constructions. This Court has, from time to time, taken cognizance of buildings constructed in violation of municipal and other laws and emphasized that no compromise should be made with the town planning scheme and no relief should be given to the violator of the town planning scheme, etc. on the ground that he has spent substantial amount on construction of the buildings, etc. Unfortunately, despite repeated judgments by this Court and the High Courts, the builders and other affluent people engaged in the construction activities, who have, over the years shown scant respect for regulatory mechanism envisaged in the municipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans, etc., have received encouragement and support from the State apparatus. As and when the Courts have passed orders or the officers of local and other bodies have taken action for ensuring rigorous compliance with laws relating to planned development of the cities and urban areas and issued directions for demolition of the illegal/unauthorized constructions, those in power have come forward to protect the wrongdoers either by issuing administrative orders or enacting laws for regularization of illegal and unauthorized constructions in the name of compassion and hardship. Such actions have done irreparable harm to the concept of planned development of the cities and urban areas. It is high time that the executive and political apparatus of the State take serious view of the menace of illegal and unauthorized constructions and stop their support to the lobbies of affluent class of builders and others, else even the rural areas of the country will soon witness similar chaotic conditions.”"         

         VI.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 7  held :-
                                            "7. In Priyanka Estates International Pvt. Ltd. v. State of Assam (supra), this Court refused to order regularisation of the illegal construction raised by the appellant and observed:

             “It is a matter of common knowledge that illegal and unauthorized constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonizers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoried buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.”"       

       VII.               The Supreme Court of India passed a judgment in Dipak Kumar Mukherjee vs Kolkata Municipal Corporation & Ors on 8 October, 2012 in  Civil Appeal No. 7356   of 2012 [ (2013) 5 SCC 336) ] in paragraph No. 8  held :-

                                       "8. What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorised constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors." 

CHHATTISGARH HIGH COURT: Justice Sanjay K Agrawal, allowed the petition and granted compensation for infringement of right to a speedy trial under Article 21 of the Constitution of India.

BACKGROUND

The facts of the case are such that the petitioner herein has filed the instant writ petition stating inter alia that he remained in jail for commission of offence under Sections 420/34 and 120B of Penal Code, 1860 i.e. IPC from 14.5.2012 till the date of delivery of judgment i.e. 08.11.2016 i.e. 4 years, 6 months and 7 days, whereas he has been awarded sentence only for three years for offence under Section 420/34 of the IPC and three years for offence under Section 120B of the IPC and sentences have been directed to run concurrently, as such, it is a clear case where his constitutional right of speedy trial enshrined in Article 21 of the Constitution of India has admittedly been violated and for which he is entitled to appropriate compensation jointly and severally from the respondents.

SUBMISSIONS

Counsel for the petitioner Ms Reena Singh submitted that that “right to speedy trial” is his fundamental right and on account of non-conclusion of trial within a reasonable time, the petitioner remained in jail for a period more than he has been sentenced now at the conclusion of trial, which is violative of his fundamental right as guaranteed under Article 21 of the Constitution of India and for which, he is entitled for compensation of ₹ 30 lacks for his said illegal detention for about 1 year, 6 months and 8 days jointly and severally from the respondents.

Counsel for the respondents Mr Jitendra Pali submitted that detention of the petitioner was judicial custody in accordance with law and the procedure established by law, as such, the same cannot be termed as illegal detention and the petitioner. It was further submitted that the petitioner is not entitled for any compensation as his fundamental right of speedy trial has not been violated and he remained in judicial custody till the date of judgment for commission of offence which have been found proved by the trial Court. 

Mr Prasoon Agrawal (Amicus Curiae) relied on judgment P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC 578 submitted that “right to speedy trial” is a fundamental right of an accused under Article 21 of the Constitution of India.    

OBSERVATIONS

1.  The court relied on “Common Cause” v. Union of India, (1996) 4 SCC 33 and observed that it has clearly been established that the right to speedy trial in criminal case is valuable and important right of the accused therein and its violation would result in denial of justice and that would result in grave miscarriage of justice.    

2.   The Court relied on judgment Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 and wherein it was held ” Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right.”    

The Court thus observed that this Court in the exercise of jurisdiction under Article 226 of the Constitution of India under public law, can consider and grant compensation to the victim(s) who has suffered an infringement of fundamental right i.e. right to life and personal liberty guaranteed under Article 21 of the Constitution of India.        

3.   Right to life is a fundamental right guaranteed under Article 21 of the Constitution of India and for its breach or violation, the petitioner is entitled to monetary compensation from the respondents who are responsible for its breach.

4.  The Court relied on judgment Vijay Kumar Gupta v. State, 2008 SCC OnLine Pat 568 has held that detention of a prisoner in custody in excess of the period that he has been sentenced infringes upon his fundamental right to life and liberty and as such, he is entitled for monetary compensation and further held that both the prosecuting authority and Court remained oblivious of his continuous detention for more than a period, the sentence for any of the offence would have carried.     

The Court observed that following the principles of law and reverting to the facts of the present case, it is quite vivid that the petitioner remained in jail as undertrial for a period of 4 years, 6 months and 7 days, whereas he has been awarded punishment of 3 years for offences under Section 420/34 and Section 120B of the IPC (separately) and both sentences to run concurrently, as such, he remained in jail in excess (one year and six months) for more than the sentence awarded by concerned trial Magistrate, on account of delay in conducting the trial, despite twice this Court while hearing bail applications on 22.4.2013 and 24.6.2014 directed the trial Magistrate to conclude the trial expeditiously, which was not taken cognizance of by the learned trial Magistrate by which the petitioner continued in jail for a period more than the actual sentence awarded violating the petitioner’s right to speedy trial guaranteed under Article 21 of the Constitution of India and for which he is entitled for monetary compensation.

DECISION

The Court held “the petitioner will be entitled for ₹10,400×18=1,87,200/along with 6% interest from today till the date of payment jointly and severally which respondents No.2 and 4 will deposit within a period of 30 days from today.”

 [Nitin Aryan v. State of Chhattisgarh, Writ Petition (Cr.) No.629 of 2020, decided on 07-06-2021]

The Content Created and Designed by:-

GIASUL   ISLAM

             Advocate.

High Court Calcutta.

Email: adv.giasul@gmail.com
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Who is more powerful? HC Judge vs IAS (Comparison of powers)

Introduction

An IAS (Indian Administrative Services) officer is an officer which comes under the executive ambit under the administration, whereas a High Court judge is an officer of Judiciary. Both IAS and HC judge have different scope of work and different powers are confined to them.

Comparative Analysis

In terms of area of work, both judges and administrative officers have different things to deal with. The work of an IAS is very broad and different administrative departments are administered by IAS officer, whereas the work of a judge is to implement law and provide justice. Speaking about the powers a Judge even has the power to summon the IAS officer in the court of law and even in terms of precedence a judge comes above an IAS officer as for example Chief Justice of India (highest post of judiciary) is above in the precedence as compared to cabinet secretary (Highest post in IAS).

Overall there cannot be a direct comparison between a HC judge and an IAS officer as both have different powers, functions and responsibilities but in terms of comparison a judge is more powerful than an IAS officer.

Conclusion

Hence, it can be concluded that a judge enjoys more power than civil servants, and this comparison is based on hierarchical order of precedence and other procedural powers. The judiciary has been given the power to implement laws and also issue writs for preserving the rights of the individuals as enshrined under the Constitution of India and the judiciary can also hold the administration accountable for any action, hence it can be said that in terms of powers the HIGH COURT judge is more powerful than an IAS Officer.

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Hence, it can be concluded that a judge enjoys more power than civil servants, and this comparison is based on hierarchical order of precedence and other procedural powers. The judiciary has been given the power to implement laws and also issue writs for preserving the rights of the individuals as enshrined under the Constitution of India and the judiciary can also hold the administration accountable for any action, hence it can be said that in terms of powers the HIGH COURT judge is more powerful than an IAS Officer.

Hence, the judiciary has been given the power to implement laws and also issue writs for preserving the rights of the individuals as enshrined under the Constitution of India and the judiciary can also hold the administration accountable for any action, hence it can be said that in terms of powers the HIGH COURT judge is more powerful than an IAS Officer.

What is Domestic Violence? What are its types, causes and effects?

Introduction

Domestic violence is one of the gravest offences to ever exist in the society, because it not only includes bodily injury but also includes mental torture and abuse. The scope for relief under domestic violence was very low in previous time when there was no law governing it. The ambit of domestic violence increased with the enactment of “Protection of Women from Domestic Violence Act, 2005”.

Causes and Types of Domestic Violence

The cause for domestic violence can be different in different cases as it depends on the circumstances and situations. The main causes for domestic violence can be establishing dominance, intoxication, for demand of dowry in case of a married couple, etc. The domestic violence is not limited to physical violence, it includes, mental torture, verbal abuse, isolating from the resources, sexual violence, etc. This can have various negative impacts on the body and mind of the victim. As a result in many cases the victim decides to commit suicide.

Provision

The laws on domestic violence was previously governed by Section 498A of the IPC, which enumerated the provisions as if a husband or elative of a husband subjects cruelty to the wife then he will be punished with imprisonment up to three years and also be liable with fine. As the scope of this section is very narrow and only covers certain circumstances it was not enough to govern the whole consequences of the offence. Hence, Protection of Women from Domestic Violence Act, 2005 came into force. This expanded the scope of Domestic Violence which was previously only limited to married women.

Judicial Interpretations

The courts in various judgments also increased the scope of the “Protection of Women from Domestic Violence Act, 2005”. In the case of Lalita Toppo V. State of Jharkhand, the honorable court observed that the couples which are not married and are in live in relationship will also be coming under the “Protection of Women from Domestic Violence Act, 2005”.

Conclusion

Hence, it can be concluded that by enacting the act on the domestic violence, the intention of legislature was to expand the ambit of domestic violence. Even through the judicial interpretations, the courts have observed that the act is not limited to only married couples.

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