Lawyer Kislay

12/02/2019

Chances of getting bail in 498a IPC ?
The Supreme court quoted that sections under 498a under the Indian penal code is widely misused and for no reason husband and family members are prosecuted and jailed thereby tarnishing the reputation of the family the sections are exactly termed as “legal terrorism”.
Now coming to the bail part, most of the people ask me the chances of getting bail in dowry cases, it is very easy to get bail and contest the case of 498a.
ANTICIPATORY CAN BE FILED IN TWO SITUATIONS:
1- FIR not registered- A simple application requesting pre-arrest notice will be prayed before the Court through a lawyer.
2- FIR is registered- Anticipatory bail application u/s 438 Crpc will be filed where anticipatory bail will be granted. You will get a notice through I.O 7 days before your arrest. Meanwhile in these 7 days, you can apply for regular bail.
PROCEDURE-
1-Get an application drafted by a counsel.
2-That application will be submitted in court.
3-Generally bail applications are taken up by the court next day only. Notices will be sent to opposite party and police officer to be present before the court.
4- Order will be passed after argument. One can get orders in hand on request before the judge.

Kanika Bhardwaj
Advocate, New Delhi
+91-9582000415

28/12/2018

Mistakes done while signing an agreement/contract.

1-Arbitration - This clause is most crucial one that decides that dispute in future will be handled by arbitrators which means right to file recovery in court gets relinquished automatically. Also take care that entire process of appointing the arbitrators is elaborated. There is a possibility that other party cleverly may draft that he only have the power to appoint the sole arbitrator. In this case, that party will appoint his known person as an arbitrator and you might lose the case obviously.
2- Jurisdiction- It defines the area where legal proceedings will be initiated in case of dispute. Party to contract overlook this clause as they do not have much awareness about it. It is a pure legal term.
3- Notary and stamp paper- A duly notarized agreement/contract is a good agreement/contract and is more valid before the Court. E.g companies get employee-employer agreement done without stamp paper and notary is a bad agreement/ contract.
4- Photographs of parties duly signed. Signature must be half on photo and half on paper to make it more valid so that party cannot deny their signatures.
5- Always annex self attested copy of identity card of all the the parties.

01/12/2018

Maharashtra is now the 2nd State in the country after Tamil Nadu to take reservations proportions to 68/:

Obviously it is in violation of the Supreme Court ceiling of 50/: . Most likely the Supreme Court will deliberate upon its justification in near future. Marathas have got 16/: of reservations , whereas they constitute nearly 1/3 of the State population. What is noteworthy is that the said Bill was passed in the Vidhan Sabha within minutes of its being placed without any discussion by all political parties.

The above virus of reservations will not stop there. It is likely to engulf more of the states in future leading to further fragmentation of the society.

I don’t think that Supreme Court will approve it outright.

But as citizen and being a member of the civil society , we should condemn such political decisions aiming at votes only.

Tell your opinion reagarding this issue.

21/06/2018

CHEQUE BOUNCED ? WISH TO RECOVER THE AMOUNT these are the step to be done-

1- Immediately ask for the "bank memo" from the bank where you have deposited the cheque.
2- Send a Legal notice within 30 days- Sending a legal notice is mandatory in cheque bounce cases.
3- Give 15 days time to the accused through a legal notice to settle the issue. If the accused is ready to pay the amount back after receiving the legal notice then get a " settlement deed" drafted and notarize it in presence of witnesses.
4- If the accused does not settle the issue within 15 days, you have to file a complaint u/s 138 N.I Act before the Hon'ble Court.

Important to know:
1- That 138 complaint can only be filled if the steps are taken within prescribed time. Or else you will lose your right to claim your money.
2- 138 is a criminal offence. Thus, police gets involved in such cases and accused person has to obtain bail or else warrants are issued against accused and he can be arrested too.
3- The only documents required to file 138 is a bounced cheque, bank memo, copy of legal notice.
3- It is a very speedy process. And most of the cases gets settled before the judgement only because accused is under pressure of getting arrested.

14/05/2018

The Central government submitted a Cauvery draft water management scheme in the Supreme Court on Monday, a day before the counting of votes in the May 12 Karnataka Assembly elections.

Union Water Resources Secretary U.P. Singh, who was summoned by the court on May 8, was personally present in the courtroom with copies of the draft scheme.

A Bench led by Chief Justice of India Dipak Misra, receiving the copies, made it clear that the court will not go into “neither the propriety nor the legality” of the scheme and did not want a second round of prolonged litigation among Karnataka, Tamil Nadu, Puducherry and Kerala.
Centre open to any nomenclature’

Attorney-General K.K. Venugopal informed the court that the Centre was open to any nomenclature for the implementing authority of the Cauvery Water Management Scheme, 2018. Mr. Venugopal said it could be “Board, Authority or Committee.” The authority would be a body corporate headquartered in Bengaluru.

Mr. Venugopal submitted that either the riparian States could be given copies and open the floor for debate on the scheme, or the court could direct otherwise, wherein, the Union Cabinet would finalise the draft scheme as per Section 6A of the Inter-State River Water Disputes Act.

The draft said the chairman of the authority, to be appointed by the Centre, will have a proposed tenure of five years or till the age of 65, and that the person will be a senior eminent engineer with wide experience or an IAS officer.

The authority will have four part-time members from the States who are administrative secretaries in the water resources departments of the four States.

Reservoirs would be operated in an integrated manner under the overall guidance of the authority, said the scheme. In June every year, the authority would gauge the residual storage capacity of the reservoirs. States will share administrative costs

Karnataka and Tamil Nadu will share 40% each of the administrative expenses of the chairman and members, and field organisation costs of the authority. Kerala will contribute 15% and Puducherry 5%.

The authority would monitor storage, apportionment, regulation and control of Cauvery waters. It shall supervise the operstion of reservoirs and with regulation of water releases with the assistance of Regulation Committee.

Regulated release by Karnataka will be at the inter-State contact point presently idenitified as Biligundlu gauge and discharge station located on the common border of Karnataka and Tamil Nadu.

If any State does not cooperate with the Cauvery Tribunal or Supreme Court’s February 16 judgment, the authority can approach the Centre, whose decision will be final and binding on the States.

The authority would also decide on the “distress formula” in water-sharing.

The court ordered the Centre to provide Karnataka, Tamil Nadu, Kerala and Puducheery with the draft scheme copies to check whether it is in conformity with the February 16 judgment.

The court scheduled the next hearing for May 16.

13/03/2018

Honble Supreme Court judgment on linking adhar card to mobile phone and bank accounts.

The Supreme Court on March 13 extended the deadline for Aadhaar linkages of bank accounts, tatkal passports and mobile phones etc. till its Constitution Bench delivers judgement on the matter. However, the deadline for subsidies and benefits under Section 7 of the Constitution will stay. However, the deadline for subsidies and benefits under Section 7 of the Constitution will stay as March 31, 2018.

11/01/2018

The Supreme Court on Thursday stayed the trial in the SNC Lavalin case until further orders and admitted the CBI to appeal against the discharge of Kerala Chief Minister Pinarayi Vijayan and two others from all criminal and corruption charges.

A Bench of Justices N.V. Ramana and Abdul Nazeer issued notice on the CBI appeal against the discharge of Mr. Vijayan, K. Mohanachandran, former principal secretary, Department of Power; and A. Francis, then joint secretary in the same department, by the Kerala High Court on August 23. However, it dismissed the discharge petitions of K.G. Rajasekharan Nair, then Member (Accounts) of the Kerala State Electricity Board (KSEB) and Kasthuriranga Iyer, who was Chief Engineer (Generation) in the Board.

The court also sought the response of the investigation agency on pleas made by Mr. Iyer, Mr Nair and R. Sivadasan as to why they were not treated on a par with Mr. Vijayan and the two co-accused who were released from all charges in the case.

“I have a problem with the release of some accused alone,” Additional Solicitor General Tushar Mehta submitted.

“For once, we both [the CBI and the accused] agree,” senior advocates Mukul Rohatgi and R. Basant, appearing for the appellant accused, said in agreement with the CBI.

‘Case needs to be re-heard’

Mr. Mehta said the High Court had crossed the boundaries of its jurisdiction under Article 227 of the Constitution. “The case needs to be re-heard,” he submitted.

Mr. Rohatgi and Mr. Basant successfully urged the Bench to grant status quo on the trial proceedings while the appeals are pending in the Supreme Court.

“We have not been discharged. Continuation of trial will be detrimental to us now,” Mr. Rohatgi said.

The CBI, in its appeal, said there was “ample material to show the involvement” of Mr. Vijayan in the Lavalin deal.

‘Pick and choose’ policy

The CBI said the High Court accused it of adopting a “pick and choose” policy in naming certain persons as accused. But in fact, the CBI countered, it was the court that employed such a policy by discharging certain accused persons while leaving the rest of the charge-sheeted persons to face trial.

“All decisions [in the Lavalin deal) were taken with the knowledge of all the accused persons named in the charge sheet ... discharge of the accused may lead to miscarriage of justice and delay the trial,” the CBI petition contended.

“It is a matter of fact that there was ample material to prima facie show conspiracy in the matter, which may have been appreciated at the stage of trial only,” it said.

The CBI asked how the High Court could hold that there was criminal conspiracy on one hand and discharge certain accused persons on the other.

All the accused, except the three discharged, would now face trial for causing a loss of ₹86.25 crore in the KSEB’s contracts with Lavalin, a Canadian entity, for the renovation and modernisation of Pallivasai, Sengulam and Panniar hydroelectric projects in Idukki district of Kerala.

The work was awarded to Lavalin, which was only a consultancy firm, without inviting any tenders for ₹ 243.74 crore. By the time work was completed, the costs had gone up to ₹374.5 crore. Besides, the KSEB failed to execute a binding agreement from Lavalin for a grant of ₹98.3 crore for the construction of the Malabar Cancer Centre. A criminal case was registered on February 12, 2007 and the CBI filed its charge sheet on June 12, 2009.

14/12/2017

The Supreme Court’s Constitution Bench on Thursday said it would pass a judicial order extending the deadline to link mobile numbers with Aadhaar on December 15, 2017 at 10.30 a.m.

On Wednesday, the government had issued a notification that the deadline to link Aadhaar with PANs and bank accounts would be extended to March 31, 2018, but that mobile numbers should be linked by February 6, 2018.

16/11/2017

The Supreme Court on Wednesday rapped Uttar Pradesh government for failing to file a comprehensive policy on the issue of pollution in the Taj Trapezium Zone (TTZ) and nearby areas as directed under its order dated October 17. The apex court had, b...

Read more at:

The Supreme Court on Wednesday rapped Uttar Pradesh government for failing to file a comprehensive policy on the issue of pollution in the Taj Trapezium Zone (TTZ) and nearby areas as directed under its order dated October 17. The apex court had, by the aforesaid order, granted stay on the demolitio...

02/11/2017

Draft law recommends life in jail for custodial torture
Hindustan Times
It also said the Indian Evidence Act requires insertion of a new section 114B. “This will ensure that in case a person in police custody sustains injuries, ...
Law panel moots life term for torture - The Hindu
Breaking: Law Commission Recommends Ratification Of UN Convention On Torture, Submits Draft ... - Live Law

02/11/2017

Draft law recommends life in jail for custodial torture
Suggested amendments in existing laws include presuming injuries sustained in custody as inflicted by police, and requiring the cops to prove otherwise.
india Updated: Oct 30, 2017 21:16 IST
Jatin Gandhi
Jatin Gandhi
Hindustan Times, New Delhi
The draft law has recommended amendment to the IPC to incorporate payment of compensation, in addition to imposition of fine.
The draft law has recommended amendment to the IPC to incorporate payment of compensation, in addition to imposition of fine. (HT FILE PHOTO)

The law commission has proposed a new bill recommending life term and fine for public servants — read police — found guilty of custodial torture.

The panel on Monday submitted the draft law, titled The Prevention of Torture Bill 2017, as part of its 75-page report on the subject in response to a July reference from the law ministry to the commission.

It has also recommended that the government ratify a United Nations convention on “torture and other inhuman and degrading treatment or punishment”.

India is a signatory to the convention, but in the absence of an anti-torture law, it is yet to ratify the convention. As many as 160 countries have ratified the convention and not doing so puts India in the company of nations with an abysmal record on custodial torture, such as Pakistan and Afghanistan.

The UPA government had drafted a bill on torture in 2010 which could not be passed.
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The draft law framed by the panel says to curb the menace of torture and to have a deterrent effect on acts of torture, stringent punishment to the perpetrators of such acts, including “punishment extending up to life imprisonment and fine”, needs to be handed out.

The report submitted to the law ministry proposes amendments to key criminal laws including the Criminal Procedure Code, 1973, and the Indian Evidence Act, 1872, to include provisions regarding compensation and burden of proof.

It has recommended amendment to the Indian Penal Code to incorporate payment of compensation, in addition to imposition of fine.

It also said the Indian Evidence Act requires insertion of a new section 114B. “This will ensure that in case a person in police custody sustains injuries, it is presumed that those injuries have been inflicted by the police, and the burden of proof shall lie on the authority concerned to explain such injury,” it has recommended.

The panel has said the state should own the responsibility for the injuries caused by its agents on citizens, and the principle of sovereign immunity cannot override the rights assured by the Constitution.

“While dealing with the plea of sovereign immunity, the courts will have to bear in mind that it is the citizens who are entitled to fundamental rights, and not the agents of the s

20/08/2017

Beijing warns Washington as US launches probe of China's pratices

China has urged the United States to objectively evaluate China's progress in protection of intellectual property rights (IPR) and resolve the differences with China through dialogue and consultation.
BEIJING [CHINA]: After US Trade Representative (USTR) Robert Lighthizer formally initiated an investigation into China's intellectual property practices under Section 301 of the Trade Act of 1974, Chinese Ministry of Commerce has warned United States, saying that "Beijing will take all appropriate measures to safeguard its legitimate rights and interests".
"The investigation will seek to determine whether acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation are unreasonable or discriminatory and burden or restrict US commerce," the USTR's Office said in a statement.
Chinese Ministry of Commerece has warned that if the US side fails to respect basic facts and multilateral trade rules, and takes measures that harm bilateral economic and trade relations, "China will definitely not sit by, but take all appropriate measures to resolutely safeguard its legitimate rights and interests,"

"The United States should treasure the current sound Sino-US economic and trade ties and cooperation momentum. Any US trade protectionism move will surely damage bilateral ties and the interests of companies from both countries," Global Times quoted China's Ministry of Commerce statement.
Section 301, once heavily used in the 1980s and the early 1990s, allows the U.S. president to unilaterally impose tariffs or other trade restrictions against foreign countries, thus it has the potential to damage U.S.-China ties. But the United States has rarely used the trade tool since the WTO came into being in 1995.

China has urged the United States to objectively evaluate China's progress in protection of intellectual property rights (IPR) and resolve the differences with China through dialogue and consultation.
"The United States should treasure the current sound Sino-US economic and trade ties and cooperation momentum. Any US trade protectionism move will surely damage bilateral ties and the interests of companies from both countries," Global Times quoted China's Ministry of Commerce statement.