Prolawctor Daily Legal Update| 12 August, 2020

Daily Legal Update

  • Investigation, territorial jurisdiction and transfer under section 406 of Cr.P.C

As per crpc, 1973 filing an FIR is the first step for investigation where offense has occured. Sec 154, of crpc deals with registration of FIR in case of cognizable offences and sec 155, of crpc deals registration of FIR in territorial jurisdiction with non cognizable offenses. When a cognizable offense has been occurred there will no question of territorial jurisdiction and the authority while filing an FIR. The case would be directed through zero FIR irrespective of territorial jurisdiction.  Later after registering the case would be transferred to the particular station.

After filing an FIR, the officer of the station need to foraward to the magistrate. Once the police is done with the investigation the police need to file the report. The court requires to have requisite territorial jurisdiction for taking cognizance of an offence on police report.

In the offense has been occurred outside the territorial jurisdiction the court orders the informant to produce appropriate evidences to the court. During investigation, the accused need to be produced infront of magistrate where his arrest has been commenced. After submitting the report by police if they finds  that the  cause of action has not been arised within his jurisdiction he will forward the case to magistrate to take cognizance. Under sec 406, of crpc the apex court may transfer for the case from one high court to another high court or subordinate courts.A case doesnot include any pending investigation. Thus under  sec 406 of crpc the case would be transferred to particular court to complete the whole investigation.

  • “Relief for 2 districts of Jammu and Kashmir-  Ban on 4G Internet services to be lifted on trial basis from independence day.”

Attorney general K.K. Venugopal, on Tuesday assured a three- judge bench of Justice N.V. Ramana, Justice Subhash Reddy and Justice B.R. Gavai of Supreme Court that 4G internet services would be restored in 2 districts, each from Jammu and Kashmir after 15th August.

High speed internet services in J&K were revoked last year in the month of August wherein the centre announced revocation of special status of J&K by discarding Article 370. Till date, the high speed internet services have not been restored.

A Special Committee appointed by Supreme Court has suggested that high speed internet services should not be completely restored in J&K as there are high chances of threat. Complete restoration would not be conducive  in this current situation, so the committee has recommended that 1 district form each Jammu & Kashmir shall restore high speed internet services temporarily on trial basis and the outcome of same would be reviewed by the centre after 2 months.

Committee also points out that while selecting the districts, great care has to be taken and the areas so selected should not be near the international border/ Line of Control (LoC), also they should have low intensity of terrorist activities.

It was also submitted by the counsel that there is no hindrance in Covid Care, educational programs or business activities due to the ban.

  • The apex court adjourned the hearing of a plea challenging the merger of BSP MLAs with congress on 13th August.

Recently a bench constituting Justice Arun Mishra, BR Gavai, and Krishna Murari, after hearing the contentions raised in the aforementioned plea filed by the BJP MLA Madan Dilawar adjourned the hearing citing the reason that Dilawar’s plea was due to be heard at 2 PM today in the high court. Consequently, the matter before the Supreme Court has been adjourned to 13th August. Furthermore, Amit Pai had also withdrawn the plea, which has been filed on behalf of the six BSP MLAs, who have sought the court to transfer the case from the high court to the Supreme Court. Dr. CP Joshi, the Speaker of Rajasthan Assembly, in September 2019 had approved the merger between six BSP MLAs (who were elected to the legislative assembly in December 2018) and Congress. Therefore, challenging the decision of the speaker under the 10th schedule of the constitution, which provides for anti-defection laws, Dilawar reached the Rajasthan high court in order to restrict the MLAs from attending the house proceedings.

  • The apex court reserves an order in a plea filed to disband the recently set up judicial commission to investigate the alleged encounter of Vikas Dubey

The apex court on Tuesday heard a plea filed by the Maharashtra based lawyer Ghanshyam Upadhyay expressing serious apprehension over the “independence” of the judicial commission which will be probing the alleged encounter. The petitioner cites a newspaper article written by The wire, which sheds the light upon the supposedly close connections between the Justice (Retd) Chauhan, who is chairing the commission and the ruling government. The petitioner additionally shed light upon the relations between KL Gupta, a member of the commission and, Mohit Agarwal, an Inspector general of Kanpur Zone, where the alleged encounter took place, While addressing the petitioner, the chief justice, SA Bobde asserted that

 “We will not allow you to level charges against a Judge on the basis of a newspaper report. What are you saying! He has been a respected Supreme Court judge, and the Chief Justice of a High Court. There was never a problem with his relatives. Why do you have a problem now? …Are any of his relatives connected with the incident or with the Inquiry? Why can’t he be fair? There are many Judges whose fathers or brothers are MPs. Are you saying that all of them are biased judges?”

The petitioner further alleged that there is a “fraud of high magnitude” being practiced by the Court, additionally the plea contends the concealing of “vital material facts which go to the very root of the matter” and the need to be investigated by the court. In conclusion the petitioner prays for disbanding of the commission while initiating “contempt proceedings” at the state representatives for supposedly concealing the facts about the members of the judicial commission set up for the inquiry.

  • DECLARATION OF ENTIRE HUMAN AS “LOCO PARENTIS”AND ANIMAL KINDOM AS “LEGAL ENTITIES”:

Advocates Shashwat Anand and Devesh Saxena filed a PIL which aimed at preventing animal cruelty by strengthening animal protection laws in the country. The PIL also wants all citizens of India to be declared as “loco parentis” (Latin for ‘in the place of a parent’ which means legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent) for the protection of animals from cruelty and abuse and to ensure their welfare. It wants that the entire animal kingdom, including avian and aquatic species, to be declared as “legal entities” having distinct persona and corresponding rights of a living person. This is for their protection.

  • Even if born before 2005 amendment to Hindu Succession Act, Daughter entitled to equal property rights : SC

On 11 August 2020, the Supreme Court ruled that daughters are entitled to equal property rights even though they were not born at the time of the Hindu Succession Act amendment of 2005, 1956 or whatever. The Supreme Court ruled that the daughters in the Hindu Undivided Family (HUF) property should have equal coparcenary rights. It will apply regardless of whether or not the father was alive at the time the amendment was made. The judgment was handed down by a Supreme Court tri-judge bench consisting of the judges Arun Mishra, S Abdul Nazeer and MR Shah.

The question raised before the Supreme Court was whether, with the passing of the Hindu Succession (Amendment) Act, 2005, a co-parent’s daughter by birth shall become a co-parent in her own right in the same manner as her son. In other words, that a daughter may be refused her share on the basis that she was born before the Act was passed and cannot therefore be regarded as a coparcener? The Court says that goal of gender justice was achieved when in 2005, Section 6 was substituted in the 1956 Act to make female heirs equal coparceners. “The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 by Amendment Act, 2005.”

In one case- Prakash v. Phulavati, the Supreme Court held that the rights under the amendment apply as of September 9, 2005, regardless of when they were born, to living daughters of living co-parentres. This meant that the living daughter would have no control over the parental property if the father passed away before the set date.

In the other case, Danamma v. Amar, the Supreme Court had held that in the same manner as the wife, the 2005 amendment confers equal property rights on the daughter. However, in the case of Prakash v. Phulavati, the Delhi High Court had followed SC ‘s judgment and held that the applicant would not have equitable property rights, as her father passed away before the date scheduled for September 9, 2005. In November 2018, a three-Judge SC Bench headed by Justice AK Sikri noted that the matter needed to be heard by a three-Judge Bench.

Highlights of the Judgement

1. The Supreme Court ruled that the 2005 amendment should have retrospective effect in extending rights to daughters who had been alive at the time of the amendment, even though they were born before it.

2. The court also stated that the right of daughters to parental property will stand, even if the father died before the Hindu Succession (Amendment) Act, 2005, came into force.

3. Justice Arun Mishra pronounced the judgment, who, while reading out the operative part of the judgment, said that daughters had to be given an equal share of coparcenary rights in the proportion of property as the wife.

4. Justice Mishra claimed that the daughter remains a loving daughter throughout life, and throughout life they will remain a coparcener regardless of whether the father is alive or not.

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